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2017 DIGILAW 346 (GAU)

Benoy Gopal Saha v. Legal Heirs of Subinoy Poddar

2017-03-17

PRASANTA KUMAR DEKA

body2017
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. B Sinha, learned counsel appearing on behalf of the appellant. Also heard Mr. S Chakraborty, learned counsel appearing on behalf of the private respondent. 2. This second appeal is against an order dated 22.09.2014 passed in Misc. (J) Case No. 11/2011 passed in Title Execution case No. 29/1992 passed by the learned Munsiff No. 1, Dhubri whereby the learned Munsiff No. 1 had rejected the prayer of the appellant/judgment debtor under Order 21, Rule 97 /101 CPC to declare the decree put into execution was non-executable. 3. The facts giving rise to this appeal is that the respondent/decree holder had instituted Title Suit No. 15/1975 against the present appellant/judgment debtor which was decreed and the decree was put into execution in the Title Execution case No. 29/1992. The suit was for specific performance of contract wherein 10L's of land was included in 1K 5L's of land agreed to be sold to the decree holder/respondents by the judgment debtor/defendant No. 1. The said judgment and decree was affirmed in SA No. 169/1977 by this Court vide judgment and order dated 20.09.1983. Thereafter the appellant/judgment debtor raised the plea under Section 47 of the CPC that the decree passed in Title Suit No. 15/1975 affirmed in the aforesaid second appeal was non-executable. The Executing Court in the said Title Execution Case No. 29/1992 allowed the said petition under Section 47 of the CPC vide order dated 18.07.1994 that the decree was non-executable. 4. The respondent/decree holder, thereafter, preferred a revision petition before this Court which was registered as CRP 411/1994 against the order dated 18.07.1994 passed by the said Executing Court of Munsiff No. 1, Dhubri. This Court vide order dated 01.12.1999 observed that there was no prayer for delivery of possession of the suit land and accordingly allowed sometime to the respondent/decree holders to take necessary steps in this regard. However, vide order dated 15.01.2001, this Court in the said CRP No. 411/1994 took notice of the order dated 01.12.1999 and observed that the decree holder cannot be denied the fruits of his decree on mere technical considerations and accordingly set aside the order dated 18.07.1994 and further it was directed to the present appellant/ judgment debtor to deliver the khas possession of the suit land to the respondent/decree holders within one month. 5. 5. The present appellant/judgment debtor thereafter filed another petition under Order 21, Rule 97 /101 CPC which was registered as Misc. (J) Case No. 11/2011 before the said Executing Court for declaring that the decree was non-executable as the decree holders had not taken any steps to amend the decree in view of the order dated 01.12.1999 passed by this Court in CRP No. 411/1994. The learned Executing Court dismissed the said petition vide order dated 26.03.2011 by holding that this Court had already noticed the order dated 01.12.1999 and thereafter the revision petition was disposed of vide order dated 25.01.2001 directing the present appellant/judgment debtor to deliver the khas possession of the suit land to the decree holders. 6. The present appellant/judgment debtor preferred Misc. appeal No. 23/2012 before the learned Court of Civil Judge, Dhubri against the order of dismissal of the petition in Misc(J) Case No. 11/2011. The said appellate court vide judgment dated 22.09.2014 dismissed the said appeal where after the present second appeal has been preferred which is taken up for admission under Order 41, Rule 11 CPC today. 7. Mr. B Sinha, learned counsel appearing on behalf of the appellant submits that a decree which is with respect to execution of the sale deed in a suit for specific performance of contract the Executing Court cannot go beyond the decree of execution of the sale deed simpliciter and deliver possession to the successful decree holder. Accordingly the First Appellate Court failed to exercise the jurisdiction by dismissing the appeal. So, Mr. Sinha submits that a substantial question of law is involved in that aspect of the matter and as such the same be formulated and the appeal be admitted. 8. Considered the submission of the learned counsel and also perused the order passed by the courts below. It is not disputed that in pursuance of the judgment and decree for specific performance of contract passed in Title Suit No. 15/1975 which was affirmed by the second appellate court, the requisite consideration was not deposited in the executing court and thereafter this Court in CRP 411/1994 directed the present appellant/judgment debtor to deliver the khas possession of the suit land to the decree holder within one month. Mr. Mr. Sinha submits that without amending the decree for specific performance of contract simpliciter introducing the relief of delivery of possession, the Executing Court cannot deliver possession to the respondent/decree holders and as such the findings of the First Appellate Court is wrong. In this respect, the submission of Mr. Sinha cannot be accepted. Section 28(3) of Specific Relief Act, 1963 stipulates that if the purchaser deposit the purchase money which is ordered to pay under the decree within the period referred in the Sub-Section 1 of Section 28, the Court may on application made in the same suit award the purchaser such further relief as he may be entitled to including the relief of delivery of possession. And sub-Section 4 of Section 28 stipulates that no separate suit in respect of any relief which may be claimed under Section 28 shall lie at the instance of a vendor or purchaser as the case may be. 9. It is not the case of the appellant/judgment debtor that the respondent/decree holder failed to deposit the sale consideration in the court within the time frame stipulated therein the judgment and decree. Under such circumstances, the submission of the learned counsel cannot be accepted inasmuch as for the purpose of Section 28 under the Specific Relief Act, 1963, the trial Court never ceases the control over the decree. In Ramankutty Guptan v. Avara reported in AIR 1994 SC 1699 the Hon'ble Apex Court with respect to the control over the decree of the trial court within the ambit and scope of Section 28 of the Specific Relief Act, 1963 held as follows: "7. The question then emerges is whether it should be on the original side or execution side. Section indicates that it should be "in the same suit". It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under Section 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under Section 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed, namely, the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law." 10. Accordingly, keeping in view the ratio laid down by the apex court the submission of the learned counsel cannot be considered inasmuch as the direction for delivery of possession was passed by the Revisional Court which is a formal judicial order to that effect of delivery of possession by the appellant/judgment debtor to the respondent/decree holder. Even if there is no such direction, under such circumstances also, if the condition stipulated under Section 28(1) so far deposit of the sale consideration is concerned and that too within the stipulated time framed by the trial court or any other court in appeal then a duty is cast upon the trial court to grant the necessary relief for successful end to the decree of specific performance of contract and to that extent the trial court has the authority to pass necessary reliefs accordingly. 11. This second appeal is devoid of substantial question of law and as such the same is not admitted and the same is dismissed.