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2017 DIGILAW 702 (GAU)

Safiar Rahman (Md. ) v. Abu Bakkar Siddique

2017-05-31

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. N. Dhar, the learned counsel for the petitioner. The present revision filed under Article 227 of the Constitution of India is directed against the order dated 25.11.2016 passed by the learned Civil Judge, Dhubri in Title Execution Case No. 1/2015 arising out of Title Suit No. 21/2001. 2. By the impugned order, the petition filed by the petitioner/judgment debtor under Section 28 of the Specific Relief Act, 1963 read with Section 47 of the Code of Civil Procedure for rescission of contract on the ground that the decree dated 09.06.2005 passed in Title Suit No. 21/2001 is not executable and is a nullity, was rejected. In the said application, the petitioner had mentioned that the agreement dated 05.09.2000 was illegal, fraudulent and the same was made with dishonest intention and for wrongful gain as the actual market value of the suit land, which is situated at the road-side, was much higher than the valuation of Rs. 40,000/- as mentioned in the agreement and that by the efflux of time of more than 15 years of litigation, the price of the property has increased manifold and at the time of filing of the said petition, the market value of the land in question was more than Rs. 2 Lakh. 3. Relying on the said petition, the learned counsel for the petitioner submits that if the sale is now directed to be made at a sum of Rs. 40,000/- whereas the market value of the suit land is more than 2 Lakh, it would cause grave injustice to the petitioner. It is prayed that by invoking Section 20 of the Specific Relief Act, this Court should not allow the sale of property to be executed for a sum of Rs. 40,000/- only. 4. In support of his argument, the learned counsel for the petitioner has placed reliance on the case of Pratap Lakshman Muchandi v. Shamlal Uddhavadas Wadhwa, AIR 2008 SC 1378 . The learned counsel for the petitioner has relied on pargarph-8 thereof, which is quoted here-in-below: "(8) But at the same time it is also true that the agreement to sell was executed way back in the year 1982. The learned counsel for the petitioner has relied on pargarph-8 thereof, which is quoted here-in-below: "(8) But at the same time it is also true that the agreement to sell was executed way back in the year 1982. Since after 1982 much water has flown under the bridge, the value of the real estate has shoot up very high, therefore, while exercising our jurisdiction u/s. 20 of the Specific Relief Act, 1963 we would like to be equitable and would not allow the sale of property to be executed for a sum of Rs. 1,20,000.00. The litigation has prolonged for almost 25 years and now at last reached at the end of the journey. Therefore, we have to settle the equity between the parties. We hold that the agreement to sell was genuine and it was executed for bona fide necessity but because of passage of time we direct that the respondents shall pay a sum of Rs. 5 lacs in addition to Rs. 1,10,000.00 as out of Rs. 1,20,000.00, Rs. 10,000.00 has already been paid as advance. On receipt of Rs. 1,10,000.00 and Rs. 5 lacs [Rs. 6,10,000.00] the appellants shall execute the agreement to sell for the property in question." 5. It is submitted that the said direction of the Hon'ble Apex Court amounts to settling a law within the meaning of Article 141 of the Constitution of India and therefore, this Court is bound to follow the said ratio to direct either that the sale be rescinded or that the sale of the suit land be made in terms of the decree, but as per the present market value of the land in question. 6. This Court has meticulously perused the order impugned herein. On perusal of the materials on record as well as the order dated 25.11.2016, it is observed that the Title Suit No. 21/2001 was decreed by the learned trial court i.e. the court of learned Civil Judge, Dhubri, on 09.06.2005. It is contained in the impugned order that the decree holder/plaintiff had deposited the balance sale consideration of Rs. 18,000/- before the said learned court on 16.06.2005 and also instituted an Execution Case for enforcement of the aforesaid decree. It is contained in the impugned order that the decree holder/plaintiff had deposited the balance sale consideration of Rs. 18,000/- before the said learned court on 16.06.2005 and also instituted an Execution Case for enforcement of the aforesaid decree. Thereafter, the petitioner herein being aggrieved by the decree passed by the learned trial court filed an appeal and on being dismissal thereof, he filed a Second Appeal before this Court being R.S.A. No. 61/2006, but the same was also dismissed. The learned Executing Court had also considered the above quoted judgment of Pratap Lakshman Muchandi (supra). The learned Executing Court by holding that the decree holder has already deposited the cost of Rs. 18,000/- in the court in terms of the decree way back on 16.06.2005, rejected the prayer made by the petitioner herein and directed the execution of formal registered sale deed after receiving the amount of Rs. 18,000/- from the court. The aforesaid impugned order is quoted below for ready reference: "25.11.2016 Both the parties are represented. Today is fixed for order upon petition no: 375/2016 filed by the Judgment Debtor/defendant under section 28 of the Specific Relief Act, 1963 read with section 47 CPC. The brief facts giving rise to his application is that the plaintiff/decree holder had instituted Title Suit No. 21/2001 stating therein that the defendant/judgment entered into an agreement with him to sell the suit land, but the defendant/judgment refused to perform his part of the contract. The said suit was decreed by this Court vide judgment and decree dated 9.6.2005. The defendant/judgment thereafter preferred first appeal but the same was dismissed and thereafter the defendant preferred second appeal before the Hon'ble Gauhati High Court in R.S.A. No. 61/2006 but the same was also dismissed and it was directed that the decree holder/plaintiff pay the balance sale consideration of Rs. 18,000/- and thereafter the judgment debtor/defendant was directed to executive a registered sale deed. It is pertinent to mention herein that the plaintiff/decree holder had deposited balance sale consideration of Rs. 18,000/- in this Court on 16.6.2005 and thereafter filed this case for. execution of the aforesaid decree. 18,000/- and thereafter the judgment debtor/defendant was directed to executive a registered sale deed. It is pertinent to mention herein that the plaintiff/decree holder had deposited balance sale consideration of Rs. 18,000/- in this Court on 16.6.2005 and thereafter filed this case for. execution of the aforesaid decree. The judgment debtor/defendant has thereafter filed the instant petition no: 375/2016 stating therein that the plaintiff had obtained fraudulent decree because it was agreed that the balance consideration was to be paid on the date of obtaining sale permission, but the plaintiff did not pay the balance money on that day; hence the decree cannot be executed. The judgment debtor/defendant further pleaded that about 15 years have elapsed and as such the value of the suit land has appreciated considerably; hence the decree cannot be executed for specific performance; as such to rescind the contract for sale. I would like to state herein that this Court is a executing Court and as such this Executing Court cannot go beyond the decree and cannot decide upon the merits of the case as to whether decree for specific performance ought to have been granted or not; hence the contention of the judgment debtor that this decree is not executable is rejected. Moreover, this Court cannot consider as to whether the decree for specific performance' ought to have been granted or not in the facts and circumstances of this case, because the Execution Court is concerned only with the execution of the decree, and cannot decide the merits of the suit. The learned counsel for the judgment debtor, has relied upon the judgment of the Hon'ble Apex Court in the case of Pratap Lakshman Nuchandi v. Shamlal Uddavdas Wadhwa [ AIR 2008 SC 1378 ] to show that the relief of specific performance is a discretionary relief and the Court cannot give unfair advantage to any party by giving the relief of specific performance of a contract. I have read the above referred judgment and there is no dispute as regards the law laid down, but it is seen that in the instant case at hand, the decree is already passed and the same is affirmed by the Hon'ble Gauhati High Court in RSA no: 61/2006; hence there is no question of revisiting the said decree again and that too by the Executing Court. Further, the decree holder has already deposited the cost of Rs. Further, the decree holder has already deposited the cost of Rs. 18,000/- in this Court in terms of the decree; as such there is no ground for not executing the decree. In view of the above the petition no: 375/2016 is rejected with cost of Rs. 1000/- (one thousand). The decree holder is directed to execute the formal registered sale deed after receiving the amount of Rs. 18,000/- from this Court on or before next date or else this Court would get the sale deed registered by its own official. Fixing 8.12.2016 for n/o." 7. Now, upon the perusal of the contents of paragraphs 8 & 9 of the case of Pratap Lakshman Muchandi (supra), it would appear that unlike the present case in hand, in the said case, the Hon'ble Supreme Court had directed the plaintiff-respondent to deposit a sum of Rs. 1,10,000/-, which makes it clear that the plaintiff-respondent had not deposited the sale consideration earlier, but was under a direction to deposit balance sale consideration after the passing of the judgment by the Hon'ble Apex Court. 8. Paragarph-8 of the case of Pratap Lakshman Muchandi (supra) is quoted above, therefore, pargarph-9 thereof is quoted below: "(9) Mr. Ramamoorthy, learned senior counsel for the appellants in C.A. No. 666 of 2002 submitted that in this appeal an order of eviction cannot be passed and in support of that invited our attention to a decision of Bombay High Court in Mohd. Hanif (deceased by Lrs) & Ors. v. Mariam Begum & Ors., AIR 1986 Bom 15 and English decision in Tasker v. Small, 1824 34 All ER 317. It is true that the appellants in this appeal claimed the property in question by way of adverse possession but neither before the trial court nor before the High Court the appellants could show any justification for the possession of the property in question. We also asked Mr. Ramamoorthy under what legal sanction the appellants are in possession of the premises in question. He has failed to point out anything except by way of permissible possession by the appellants in C.A. No. 666 of 2002. We also asked Mr. Ramamoorthy under what legal sanction the appellants are in possession of the premises in question. He has failed to point out anything except by way of permissible possession by the appellants in C.A. No. 666 of 2002. Therefore, the occupation of these appellants in C.A. No. 666 of 2002 was at best a permissible possession and now that we are enforcing the agreement to sell and direct the appellants in C.A. No. 728 of 2002 to execute the sale deed in respect of the property in question in favour of the respondent-plaintiff, we cannot permit the appellants to continue in possession of the property in question. Apart from this in order to put quietus to the whole litigation it would be just and proper that the appellants in C.A. No. 728 of 2002 should be directed to hand over the vacant possession of the property in question to the respondent-plaintiffs on payment of a sum of Rs. 6,10,000.00 [Rs. 5,00,000.00 + Rs. 1,10,000.00] to the appellants. We cannot leave the matter again for another round of litigation as otherwise the respondent- plaintiff will have to file another case for taking possession of the property in question and it will take another decade or so. Therefore, in order to do complete justice, it is directed that the appellants in C.A. No. 728 of 2002 shall hand over the possession of the property in question to the respondent-plaintiffs in the event of the respondent-plaintiffs paying a sum of Rs. 1,10,000.00, the original amount agreed in the agreement for sale and over and above a sum of Rs. 5,00,000.00 i.e. Rs. 6,10,000.00 within a period of three months from today and on receipt of the aforesaid amount, the appellants in C.A. No. 728 of 2002 shall hand over the possession of the premises in question. In case the appellants fail to hand over the possession of the property in question, the respondent-plaintiff may resort to the help of the police authorities for taking vacant possession of the property in question." 9. Thus, on reading of the aforesaid paragraphs-8 & 9 of the case of Pratap Lakshman Muchandi (supra), it is apparent that the Hon'ble Apex Court had directed the respondents/plaintiffs to pay a sum of Rs. 1,10,000/- being the original amount agreed in the agreement for sale and over and above a sum of Rs. 5,00,000.00 i.e. Rs. Thus, on reading of the aforesaid paragraphs-8 & 9 of the case of Pratap Lakshman Muchandi (supra), it is apparent that the Hon'ble Apex Court had directed the respondents/plaintiffs to pay a sum of Rs. 1,10,000/- being the original amount agreed in the agreement for sale and over and above a sum of Rs. 5,00,000.00 i.e. Rs. 6,10,000.00 within a period of three months from the date of judgment. Moreover, on reading of paragraph-9, it is also evident that the said order was passed in order to do complete justice, which is essentially the exercise of powers under Article 142 of the Constitution of India, which power is not available to this Court under Article 227 of the Constitution of India, where the only requirement is to see whether or not the learned court below has committed any jurisdictional error or acted in fragrant violation of well settled principles of law. Therefore, the facts in the present case is different from the facts and circumstances of the referred case in Pratap Lakshman Muchandi (supra), because in the present case in hand, the respondent had already deposited the balance sale consideration amount of Rs. 18,000/- way back on 16.06.2005. Therefore having deposited the entire sale consideration amount on 16.06.2005, this Court is of the view that the respondent/decree holder ought not to be burdened with additional costs on the ground that the value of the land in question has subsequently and after deposit of money in court, has increased manifold by now. 10. In that view of the matter, this Court has not found that the learned court below has committed any jurisdictional error and, as such, finding no error apparent in the impugned order dated 25.11.2016, this Court is not inclined to admit this revision petition and the same is dismissed at the motion stage, without issuing any notice to the respondent. This revision petition stands dismissed. There shall be no order as to costs. Petition Dismissed.