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2022 DIGILAW 1992 (PNJ)

Gurtej Singh v. Harjit Singh

2022-11-16

HARKESH MANUJA

body2022
JUDGMENT Harkesh Manuja, J. - The present revision petition has been filed against the order dated 18.02.2022 passed by the Court of Additional Civil Judge (Sr. Divn.), Phul, District Bathinda, whereby, an application filed at the instance of petitioner-decree holder, invoking Section 152 read with Section 153 CPC, seeking modification of the judgment and decree dated 17.08.2016 has been dismissed. 2. Brief facts of the case are that the petitioner filed a suit for specific performance against respondent, based on an agreement to sell dated 23.05.2011. During pendency of the suit, both the parties entered into a settlement resulting into grant of decree for possession in favour of petitioner, by the Court of learned Additional Civil Judge (Senior Divn.), Phul. The operative part from the said judgment dated 17.08.2016 is reproduced herein as under: '7. Accordingly, in view of the statement of the defendant on the record, the suit of the plaintiff stands decreed in terms of Order 12 Rule 6 Civil Procedure Code, 1908 for specific performance of agreement to sell dated 23.05.2011. The plaintiff is granted a period of 30 days to make payment of the remaining sale consideration to the defendant upon which, the defendant shall have the period of 30 days to execute the sale deed in favour of the plaintiff. In case, the defendant failed to execute the sale deed in favour of the plaintiff despite expiration of the total period of 69 days so granted above, the plaintiff shall have the right to seek execution of the decree in accordance with law. In that eventuality, the defendant is also restrained from alienating the suit property to any other person, except to the plaintiff during the period of first 30 days or till the execution of the sale deed, as the case may be. In case, the plaintiff failed to make the payment of remaining sale consideration to the defendant within the fixed period of 30 days, the suit of the plaintiff shall be deemed to have been dismissed in toto. Reader to prepare decree sheet. File be consigned to the record room after due compilation. " 3. As per the judgment dated 17.08.2016, the petitioner was to deposit balance sale consideration with the respondent-defendant within a period of 30 days and thereafter, the sale deed was to be executed in his favour. Reader to prepare decree sheet. File be consigned to the record room after due compilation. " 3. As per the judgment dated 17.08.2016, the petitioner was to deposit balance sale consideration with the respondent-defendant within a period of 30 days and thereafter, the sale deed was to be executed in his favour. It is a matter of record that petitioner-plaintiff did not make payment of balance sale consideration to the respondent-defendant as directed vide judgment dated 17.08.2016. Resultantly, no sale deed could be executed in his favour by the respondent. 4. After an explained delay of almost 2 years, the petitioner moved an application under Section 152/153 of the Code of Civil Procedure, seeking modification of the judgment and decree dated 17.08.2016, praying for grant of decree for refund of earnest money instead of specific performance. It was pleaded in the application that as the respondent could not remove the debris and waste material lying over the property in question, as such, no sale deed could be executed in favour of the petitioner and therefore, in fact at this stage petitioner was not interested for grant of decree for possession by way of specific performance, accordingly, he prayed for refund of earnest money. It is the said application which was dismissed by the learned trial Court vide its order dated 18.02.2022, which has now been impugned in the present revision petition. 5. Learned counsel for the petitioner submits that at the time of settlement before the trial Court, respondent-defendant suffered a statement to the effect that he was ready and willing to execute sale deed in favour of petitioner as per terms and conditions of the agreement to sell dated 23.05.2011. He further submitted that as per condition No.5 of the said agreement, the possession of the suit land was to be handed over on execution of sale deed, after removal of all the debris and waste materials. Learned counsel for the petitioner also submitted that even at this stage time period for grant of deposit of the balance consideration could be enlarged by this Court. 6. Learned counsel for the petitioner also submitted that even at this stage time period for grant of deposit of the balance consideration could be enlarged by this Court. 6. On the other hand, learned counsel for the respondent submits that the prayer made by the petitioner-plaintiff for substitution of relief for possession by way of specific performance into that of recovery of the earnest money cannot be modified/passed invoking Section 152/153 Code of Civil Procedure, the same being not based on any clerical or arithmetical mistake in the judgment. 7. I have heard learned counsel for the parties and have gone through the paper book. I do not find any merit in the contentions raised on behalf of petitioner. 8. A perusal of the judgment dated 17.08.2016 shows that petitioner-plaintiff was required to make payment of remaining sale consideration within a period of 30 days from the date of passing of the decree. Admittedly, the balance sale consideration was never paid/deposited with the respondent-defendant and as such, the stage for execution of sale deed in his favour at the instance of respondentdefendant never matured. In fact with the expiry of 30 days time as granted by the trial Court without there being any deposit made in favour of respondent-defendant, decree dated 17.08.2016 automatically became un-executable. In addition, it may be pointed out here that no application seeking extension of time regarding deposit of the balance sale consideration was ever made at the instance of petitioner-plaintiff before the trial Court. As regards the contention made on behalf of the petitioner about extension of time for deposit of balance consideration, it may be pointed out here that the power vested with the trial Court and not the executing Court or this Court even. The direction at the first instance in this regard needs exercised only by the trial Court regarding which petitioner never made any application. 9. Even the reliance made by the learned counsel for the petitioner to Clause-5 of the agreement dated 23.05.2011 is wholly misplaced. A reading of Clause-5, thereof no where supports the interpretation as has been made by the petitioner. 9. Even the reliance made by the learned counsel for the petitioner to Clause-5 of the agreement dated 23.05.2011 is wholly misplaced. A reading of Clause-5, thereof no where supports the interpretation as has been made by the petitioner. In fact a conjoin reading of Clause-5 and the statement made by the respondent-defendant before the trial Court and judgment dated 17.08.2016 shows that within a period of 30 days after passing of the judgment and decreed dated 17.08.2016, the petitioner-plaintiff was to deposit balance sale consideration and within further period of 30 days and the defendant was to execute sale deed in favour of petitioner-plaintiff along with delivery of possession and in case no sale deed was executed in favour of petitioner/plaintiff, respondent-defendant had no right to get the decree executed in accordance with law. The stage for seeking execution of the judgment and decree dated 17.08.2016 never matured as the petitioner did not deposit the balance sale consideration in favour of the respondent-tenant within the stipulated period of 30 days thereby entitling himself for possession of the suit property, as such reliance placed upon Clause 5 of the agreement was wholly misplaced. More than that, the correction sought for in the decree being not based on any clerical or arithmetical error cannot be granted in the facts and circumstances of the case by converting a decree for possession by way of specific performance, into that for refund of earnest money, that too once the petitioner himself was to be blamed for not having deposited the balance sale consideration within time by rendering the decree for specific performance being unexecutable. 10. In view of the discussion made hereinabove, I do not find any reason to interfere with the impugned order dated 18.02.2022 and the present revision petition is hereby dismissed being devoid of any merit. 11. Pending applications, if any, stand disposed of.