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2016 DIGILAW 1389 (ALL)

Brij Mohan Singh @ Vijay Singh v. Vishnu Prasad Agarwal

2016-04-13

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri R.P. Singh for the petitioner. 2. This petition has been filed for setting aside the order of Executing Court dated 8.2.2016, rejecting the objection of the petitioner u/s 47 CPC and the order of District Judge dated 8.3.2016 dismissing the revision of the petitioner against the aforesaid order. 3. Vishnu Prasad Agarwal (the respondent) filed a suit for specific performance of contract dated 30.7.2010. The suit was contested by the petitioner and the trial court after hearing the parties, by judgment dated 25.4.2013 decreed the suit. In the operative portion of the judgment, the trial court directed the defendant to execute the sale deed according to the condition of the agreement to sell dated 30.7.2010 and deliver possession over the house in dispute within 30 days, failing which, the plaintiff was given liberty to get the decree executed. The petitioner challenged the aforesaid decree in First Appeal No. 232/2014. While admitting the appeal, this court by order dated 20.3.2014, stayed the execution of the decree dated 25.4.2013 on the condition that the appellant will deposit the alleged advance of Rs. 6,50,000/- before the Registrar General of this Court within four weeks from today, by means of a bank draft. At the same time, the decree holder was also directed to deposit the balance amount of Rs. 5,50,000/- before the Registrar General within the same period. 4. The petitioner did not comply with the terms of the order 23.4.2014. Thereafter, the decree holder filed an execution case on 17.7.2014 for execution of the decree dated 25.4.2013. In this execution case, the petitioner filed an objection u/s 47 CPC on 11.2.2015. In the objection, the petitioner raised three grounds, namely, under the decree dated 25.4.2013, the amount of Rs. 5,50,000/- was liable to be deposited within the period of one month from the decree, but it has not been deposited. He further raised the ground that the remaining sale consideration of Rs. 5,50,000/- has to be deposited by the decree holder before the Executing Court, which is a condition precedent for getting the decree executed, but that amount has not been deposited before the Executing Court. He further raised the ground that the remaining sale consideration of Rs. 5,50,000/- has to be deposited by the decree holder before the Executing Court, which is a condition precedent for getting the decree executed, but that amount has not been deposited before the Executing Court. He further raised an objection that under the agreement to sell, a boundary is required to be constructed, separating the portion which was agreed to be sold to the decree holder and no such boundary has been constructed, therefore, the terms of the agreement have not been complied with. In such circumstances, the decree is not executable and the execution proceeding be dismissed. The objection of the petitioner was contested by the decree holder. The Executing Court by order dated 8.2.2016 found that it is admitted to the parties that there is private partition on 30.7.2010, therefore, the property under the decree is identifiable and sale deed could be executed in respect of the property according to the partition dated 30.7.2010. The amount of remaining sale consideration of Rs. 5,50,000/- has been deposited before the High Court in First Appeal No. 232/2014, as such, remaining sale consideration has been deposited in the court and the decree holder is entitled to execute the decree. On these findings, he rejected the objection of the petitioner u/s 47 CPC. The petitioner challenged the order in revision, in which the finding of the Executing Court has been affirmed and the revision has been dismissed by order dated 8.3.2016. Hence, this petition has been filed. 5. The counsel for the petitioner submits that it is well settled that Executing Court cannot travel beyond the decree. The decree of the court below has to be executed well within the period of one month from the date of decree, after taking the remaining sale consideration. The remaining sale consideration of Rs. 5,50,000/- has neither been deposited before the Executing Court, nor it was tendered to the petitioner, therefore, the execution proceeding was not maintainable, but so far as deposit in the High Court is concerned, it was not deposit of the remaining sale consideration, but it is a direction of this Court while granting the interim order, therefore, this deposit cannot be treated as deposit of remaining sale consideration before the Executing Court. This money is not within the reach of the petitioner, as such, he will not get anything. This money is not within the reach of the petitioner, as such, he will not get anything. Similarly, terms and conditions of the agreement to sell regarding construction of boundary wall, separating the property to be sold, has also not been fulfilled. The trial court has directed to execute the decree according to the terms of the agreement. Since the terms of the agreement have not been complied with, therefore, the sale deed could not be executed and the rejection of the objection of the petitioner u/s 47 CPC is illegal. 6. I have considered the arguments of counsel for the petitioner and examined the record. So far as decree dated 25.4.2013 is concerned, one month time has been fixed for discharging the obligation of the petitioner, after accepting the remaining sale consideration, he has to execute the sale deed according to the terms of agreement. This obligation has not been discharged by the petitioner, therefore, this part of the obligation cannot be imposed upon the decree holder. 7. So far as remaining part of the decree is concerned, liberty has been given to the decree holder to get the decree executed according to the law. Under Article 135, a decree for specific performance can be executed within a period of three years. For getting the decree executed, only obligation is upon the decree holder to deposit the rest of the amount under the agreement to sell. So far as the rest of the amount under the agreement to sell is concerned, that has been deposited by the decree holder in pursuance of the order dated 23.4.2014 on 14.5.2014. Thus the amount has been deposited within three years as well as before filing the execution proceeding before the Executing Court. Objection of the petitioner that deposit before this court cannot be treated as deposit of balance amount, is not liable to be accepted, in as much as this court itself has directed the decree holder to deposit the balance amount of Rs. 5,50,000/-. Thus, the balance amount has been deposited and it is before the court. The Executing Court has rightly treated that amount has been deposited in the court. 8. So far as obligation for construction of boundary wall is concerned, it is upon the defendant-petitioner, but he has failed to raise the boundary wall so that he cannot take a plea that this obligation was not fulfilled. The Executing Court has rightly treated that amount has been deposited in the court. 8. So far as obligation for construction of boundary wall is concerned, it is upon the defendant-petitioner, but he has failed to raise the boundary wall so that he cannot take a plea that this obligation was not fulfilled. The impugned orders do not suffer from any illegality. The petition has no merit and is dismissed.