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2016 DIGILAW 1322 (ALL)

Munni Lal v. Laxmi Prasad

2016-04-08

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Kamlesh Kumar Tiwari, for the petitioner and Sri Ram Sheel Sharma, for the respondents. 2. This petition has been filed for setting aside the orders of Civil Judge (Senior Division), dated 11.09.2015, rejecting objection of the petitioner under Section 47 C.P.C., in execution proceeding and Additional District Judge, dated 13.01.2016, dismissing the revision of the petitioner against aforesaid order. 3. Laxmi Prasad (the respondent) filed a suit (registered as O.S. No. 93 of 1997) for specific performance of registered agreement to sell dated 25.05.1992 against the petitioner. It has been stated in plaint that the petitioner was owner of plot 1013 (area 17.81 acre) of village Gursarai, pargana Garotha, district Jhansi. The petitioner entered into a registered agreement to sell dated 25.05.1992 with the respondent and agreed to sell an area of 6.001 acre land of plot 1013 for sale consideration of Rs. 93,000/-. Out of total sale consideration, Rs. 70,000/- was taken on 25.03.1992 at the house and Rs. 18,000/- before Sub-Registrar at the time of registration of the agreement to sell. It was agreed between the parties that after giving remaining amount of Rs. 5000/- within two years, sale deed would be executed. The respondent was ready with remaining sale consideration and willing to obtain sale deed within time allowed under the agreement but the petitioner avoided to accept the remaining sale consideration and execute sale deed on one or other pretext. Registered notice dated 30.11.1996 was send by the respondent which was served upon the petitioner, asking him to come to the office of Sub-Registrar on 24.12.1996 and execute sale deed after taking remaining sale consideration but he did not turn up. On these allegations suit was filed. 4. The petitioner contested the suit and filed his written statement. After recording evidence of the parties, Civil Judge (Senior Division) by his judgment dated 17.03.2011 decreed the suit and directed the petitioner to execute the sale deed according to the terms of agreement to sell dated 25.05.1992 of plot 1013 after taking Rs. 5000/- from the respondent within one month. Failing which, the respondent was given liberty to get the sale deed executed through the Court after depositing remaining sale consideration. The petitioner challenged the aforesaid decree in Civil Appeal No. 33 of 2011. 5000/- from the respondent within one month. Failing which, the respondent was given liberty to get the sale deed executed through the Court after depositing remaining sale consideration. The petitioner challenged the aforesaid decree in Civil Appeal No. 33 of 2011. Initially the appellate court by order dated 05.04.2011 admitted the appeal and stayed execution of decree dated 17.03.2011 during pendency of the appeal. Additional District Judge, after hearing the parties by judgment dated 20.09.2014 dismissed the appeal. The petitioner filed a second appeal (registered as Second Appeal No. 24 of 2015) before this Court from aforesaid decree, which was dismissed on 12.01.2015 by this Court. 5. The respondent filed an execution case (registered as Execution Case No. 26 of 2014) for execution of decree dated 17.03.2011, after dismissal of Civil Appeal No. 33 of 2011. Executing Court, after hearing the parties, by order dated 03.10.2015 permitted the respondent to deposit amount of Rs. 5000/- i.e. remaining sale consideration, which was deposited by the respondent on 05.10.2015 in treasury. The petitioner filed an objection (registered as Misc. Case No. 3 of 2015) under Section 47 C.P.C., raising plea that property under decree is unidentifiable as such decree cannot be executed. Executing Court, by order dated 03.03.2015 upheld the objection, allowed it and held that decree dated 17.03.2011 is not executable. The respondent filed a revision (registered as Civil Revision No. 30 of 2015) against the aforesaid order. In the meantime, the respondent also filed a contempt petition (registered as Contempt Application (Civil) No. 2792 of 2015) before this Court. This Court, by order dated 11.05.2015, disposed of the contempt petition, giving an opportunity to Civil Judge (Senior Division) to reconsider the matter afresh. When the order dated 11.05.2015 was brought to the notice of Civil Judge (Senior Division) then he readmitted Misc. Case No. 3 of 2015 to its original number and after hearing the parties by order dated 11.09.2015, rejected objection of the petitioner under Section 47 C.P.C. Thereafter Additional District Judge, by his judgment dated 13.01.2016 dismissed Civil Revision No. 30 of 2015 as infructuous. 6. The petitioner filed a revision (registered as Civil Revision No. 91 of 2015) against the aforesaid order dated 11.09.2015. Additional District Judge, after hearing the parties, affirmed the findings of Executing Court and dismissed the revision, by order dated 13.01.2016. Hence, this petition has been filed. 7. 6. The petitioner filed a revision (registered as Civil Revision No. 91 of 2015) against the aforesaid order dated 11.09.2015. Additional District Judge, after hearing the parties, affirmed the findings of Executing Court and dismissed the revision, by order dated 13.01.2016. Hence, this petition has been filed. 7. The counsel for the petitioners submitted that total area of plot 1013 was 17.81 acre. Alleged agreement to sell was in respect of an area of 6.001 acre of plot 1013. Neither in the agreement to sell nor in plaint of O.S. No. 93 of 1997, boundary of the land, subject matter of agreement or any other specification has been given. In judgment and decree dated 17.03.2011, also no specification of the land required to be transferred has been given. Order VII Rule 3 C.P.C. requires that where the subject matter of the suit is immovable property, the plaint shall contain a description of property sufficient to identify it. The property under decree is unidentifiable as such decree cannot be executed as held by Supreme Court in Hemanta Mandal Vs. Ganesh Chandra Naskar, (2016) 1 SCC 567 and Orissa High Court in Rama Subudhi Vs. Bhagirathi, AIR 1980 Orissa 86. The plaintiff has to deposit the amount of Rs. 5000/- within one month from the date of decree dated 17.03.2011 but he has failed to deposit this amount of Rs. 5000/- within one month from the date of decree. As such in view of Section 28 of Specific Relief Act, 1963, agreement to sell dated 25.05.1992 stood rescinded and suit itself was liable to be dismissed. Decree has become un-executable as held by Supreme Court in P.R. Yelumalai Vs. N.M. Ravi, (2015) 9 SCC 52 . Orders of the Courts below are illegal and liable to be set aside. 8. I have considered the arguments of counsel for the parties and examined the record. Order VII Rule 3 C.P.C. requires that where subject matter of the suit is immovable property, the plaint shall contain a description of property sufficient to identify property. In case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundary or number. Thus under this provision, description of the immovable property can be given either by boundary or by its settlement number. In case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundary or number. Thus under this provision, description of the immovable property can be given either by boundary or by its settlement number. In this case property in dispute has been described in the agreement and plaint from its settlement number of revenue record i.e. plot 1013 of village Gursarai, pargana Garotha district Jhansi. Thus description of property has been given in the agreement to sell dated 25.05.1992 and the plaint. So far its area is concerned, the petitioner agreed to sell an area of 6.001 acre out of total area 17.81 acre. If boundary of this area of 6.001 acre, which is subject matter of agreement, has not been given in agreement then after execution of sale deed, the respondent will become a co-sharer with the petitioner, having his 6.001 acre share in plot 1013. Full Bench of this Court in Ganesh Vs. Shri Ram Lalaji Maharaj Birajman Mandir, AIR 1973 All 116 (FB) and Single Judge in Shyam Lal Vs. Vijay Singh, AIR 2008 All 1 , held that description of immovable property from its settlement number is sufficient compliance of Order VII Rule 3 C.P.C. The petitioner has raised this issue before appellate court in Civil Appeal No. 33 of 2011, which has not been accepted by appellate court by order dated 26.11.2012. Order dated 26.11.2012 has become final against the petitioner and he cannot be permitted to raise same issue in execution proceeding. Case law relied upon by the counsel for the petitioner has no application in the facts of this case. 9. Trial Court in its decree dated 17.03.2011 directed the petitioner to execute sale deed in compliance of agreement to sell dated 25.05.1992, within one month on the cost of the respondent after taking remaining sale consideration of Rs. 5000/-. In case, the petitioner failed to comply the decree, within a period of one month then the respondent was given liberty to obtain the sale deed according to the law after deposit of the amount of Rs. 5000/-. Thus period of one month was given to the petitioner to perform the contract and not for the respondent to deposit the amount. 5000/-. Thus period of one month was given to the petitioner to perform the contract and not for the respondent to deposit the amount. The respondent was given liberty to obtain the sale deed according to the law after deposit of the amount of Rs. 5000/-. The respondent was given liberty to execute the decree according to law. Limitation of three years has been provided under Article 135 of Limitation Act, 1963, for execution of decree for specific performance of contract. Section 15 of Limitation Act, 1963 provides that in case institution of execution of a decree has been stayed by Higher Court then in computing the period of limitation, the time of continuation of stay order and day on which it was withdrawn shall be excluded. In this case execution of decree dated 17.03.2011 was stayed by order of appellate court dated 05.04.2011 in Civil Appeal No. 33 of 2011 filed by the petitioner, which was dismissed by Additional District Judge, on 20.09.2014. Then interim stay order was vacated. According to Section 15 of Limitation Act, 1963, period of three years for execution of decree has to be computed, excluding period during 05.04.2011 to 20.09.2014. The respondent deposited required amount of Rs. 5000/- on 05.10.2015 in Execution Case No. 26 of 2014. Thus execution case was filed and required amount was deposited well within period of limitation as provided under Article 135 read with Section 15 of the Limitation Act, 1963 as held by Supreme Court in Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359 . The case law relied by the counsel for the petitioner has no application in this case. 10. In view of aforesaid discussions, this petition has no merit and is dismissed.