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2023 DIGILAW 1177 (PAT)

Rajbansh Sah v. Sunil Kumar Agrawal

2023-10-16

SANDEEP KUMAR

body2023
Sandeep Kumar, J. – The present application has been filed for quashing of the order dated 24.08.2018 passed by the learned Subordinate Judge, IV, Kaimur at Bhabhua in Execution Case No.02 of 2014, by which he has rejected the application filed by the petitioner under Section 28 of the Specific Relief Act and allowed the application filed by the respondent under Section 148 of the Code of Civil Procedure for extending the date to deposit the rest decreetal amount. 2. The facts of the case are that the respondent-plaintiff filed Title Suit No.22 of 2000 for a decree for specific performance of contract for sale against the petitioner-defendant. In the said suit, it has been contended that on 08.09.1997 a registered agreement was executed by the original defendant-petitioner in favour of the respondent-plaintiff for sale of the suit property for total consideration money of Rs.40,000/-, out of which Rs.25,000/- was paid by the respondent-plaintiff to the petitioner-defendant. On refusal of the original defendant-petitioner to execute the sale deed in accordance with the agreement for sale, the respondent filed the aforesaid Title Suit No. 22 of 2000. The petitioner-defendant contested the assertion of the respondent-plaintiff and also denied the legality, validity and genuineness of the agreement for sale. He also filed Title Suit No.166 of 1998 for declaration that the agreement for sale was fraudulent, illegal and inoperative and not a genuine document. Both the suits have been heard together and by a common judgment dated 25.02.2010, the suit filed by the respondent was decreed by directing the petitioner to execute the sale deed after receiving the balance consideration money. However, the case of the respondent of payment of Rs.25,000/- by way of advance towards the consideration money was disbelieved by the trial court by holding that only an amount of Rs.6000/- had been paid by the respondent-plaintiff to the petitioner-original defendant out of consideration money. The suit filed by the original defendant, however, was dismissed. 3. The plaintiff of Title Suit No.22 of 2000 preferred an appeal against the part decree questioning the finding of payment of Rs.6000/- only by way of advance and asserting that the trial court ought to have held that altogether Rs.25,000/- was paid by way of advance out of the total consideration money. The plaintiff of Title Suit No.166 of 1998 preferred an appeal against the judgment by which his appeal was dismissed. The plaintiff of Title Suit No.166 of 1998 preferred an appeal against the judgment by which his appeal was dismissed. The appeal filed by the plaintiff of Title Suit No. 22 of 2000 has been allowed by judgment and decree dated 07.07.2014 wherein the appellate court has reversed the finding of the trial court regarding payment of Rs.6000/- only by the respondent to the petitioner by way of advance and has held that the respondent had paid altogether Rs.25,000/- to the petitioner by way of advance toward the total consideration money. On 17.09.2014, the respondent filed Execution Case No.02 of 2014 for executing the decree passed in Title Suit No.22 of 2000. On the same day, he filed an application before the Executing Court to permit him to pay Rs.15,000/- through challan. However, the aforesaid application was never pressed. 4. It is pertinent to note that the petitioner filed Second Appeal No.253 of 2014 against the order passed in Title Appeal No.16 of 2010. He also filed Second Appeal No.116 of 2015 against the judgment passed in Title Appeal No.15 of 2010. This Court vide order dated 28.10.2016 dismissed both the appeals. 5. On 10.02.2018, the petitioner filed an application under Section 28 of the Specific Relief Act with a prayer to rescind the contract not having followed the direction of the trial court and not having deposited the rest amount of Rs.15,000/- with compound interest. The respondent filed rejoinder to the said application. On 13.03.2018, the respondent filed an application under Section 148 of the C.P.C. for extension of time for payment of required consideration money, as aforesaid. The Court below vide impugned order dated 24.08.2018 allowed the application filed by the respondent for extension of time to deposit the rest decreetal amount and rejected the application filed by the petitioner. Hence, this application. 6. The Court below vide impugned order dated 24.08.2018 allowed the application filed by the respondent for extension of time to deposit the rest decreetal amount and rejected the application filed by the petitioner. Hence, this application. 6. Learned Senior Counsel for the petitioner submits that the Court below has committed error in allowing the petition filed by the respondent for extension of time to deposit the rest decreetal amount as the trial Court in its judgment and decree dated 25.02.2010 had granted only two months’ time to deposit the rest consideration amount at the rate of 12% compound interest per annum or market value, whichever may be higher, but the respondent did not pay the said amount and after eight year of passing of the aforesaid judgment and decree, no extension could be made. He further submits that the petition dated 17.09.2014 seeking permission to deposit Rs.15,000/- through challan has not been filed in accordance with the direction of the court below. 7. Learned Senior Counsel for the petitioner further submits that subsequent to passing of the order dated 24.08.2018 the respondent – decree holder deposited a sum of Rs.1,79,700/- towards principal amount of Rs.15,000/- with interest at the rate of 12% per annum in the Nazarat, meaning thereby, that he knew all along that he had to deposit a sum of Rs.15,000/- along with compound interest thereon at the rate of 12% per annum or the market rate, whichever was higher. Therefore, the application dated 17.09.2014 regarding tendering of Rs.15,000/- by way of deposit was mala fide and non est in the eye of law. 8. Learned Senior Counsel for the petitioner has relied upon a decision of this Court in the case of P.R. Yelumalai vs. N.M. Ravi reported in (2015) 9 SCC 52 . 9. Learned counsel for the respondent-decree holder has filed a counter affidavit in the matter. In the counter affidavit, it has been stated that after passing the judgment and decree dated 07.07.2014 and 16.08.2014 passed in Title Appeals filed by the parties, the respondent being the decree-holder filed Execution Case No. 02 of 2014 for executing the judgment and decree. 9. Learned counsel for the respondent-decree holder has filed a counter affidavit in the matter. In the counter affidavit, it has been stated that after passing the judgment and decree dated 07.07.2014 and 16.08.2014 passed in Title Appeals filed by the parties, the respondent being the decree-holder filed Execution Case No. 02 of 2014 for executing the judgment and decree. It has also been stated that thereafter the respondent filed a petition dated 17.09.2014 for compliance of the judgment and decree but the concerned court did not pass any order on the said petition and therefore, the amount has not been deposited and after passing the impugned order dated 24.08.2018 the challan has been passed and accordingly, an amount of Rs.1,79,646.35/- has been deposited on 07.09.2018 by the respondent-decree holder. It has also been held that though the decree holder filed a petition dated 13.03.2018 but on perusal of the entire petition dated 13.03.2018, it will appear that a petition dated 17.09.2014 has already been filed before the court below within stipulated period because no order was passed on the said petition, the amount could not have been deposited by the decree-holder and for that the respondent-decree holder is not responsible. It has further been stated in the counter affidavit that since the judgment and decree passed in Title Suit has been challenged in Title Appeal the principle of merger will apply. 10. Learned counsel for the respondent-decree holder has relied upon a decision of the Hon’ble Supreme Court in the case of Surinder Pal Soni vs. Sohan Lal (dead) through Legal Representatives reported in (2020) 15 SCC 771 . Paragraph no.11 of the aforesaid decision reads as under: – “11. Upon the decision of the Appellate Court, there was a merger of the judgment of the Trial Court with the decision which was rendered in appeal. Consequent upon the passing of the decree of an Appellate Court, the decree of the Trial Court merges with that of the Appellate Court. The doctrine of merger is founded on the rationale that there cannot be more than one operative decree at a given point in time. The doctrine of merger applies irrespective of whether the Appellate Court has affirmed, modified or reversed the decree of the Trial Court. In Kunhayammed vs. State of Kerala, while explaining the doctrine of merger, this Court held thus: (SCC p.370, para 12) “12. The doctrine of merger applies irrespective of whether the Appellate Court has affirmed, modified or reversed the decree of the Trial Court. In Kunhayammed vs. State of Kerala, while explaining the doctrine of merger, this Court held thus: (SCC p.370, para 12) “12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way-whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.” 11. I have heard learned senior counsel for the petitioner and learned counsel for the respondent and also perused the materials on record. 12. From the record, it appears that the suit filed by the respondent was decreed on 25.02.2010 and the respondent-original plaintiff was directed to pay Rs.15,000/- with compound interest at the rate of 12% interest within two months. Title Appeal No. 16 of 2010 was filed by the respondent against the part judgment and decree passed in Title Suit No.22 of 2000 questioning the finding of payment of Rs.6000/- only by way of advance and the said appeal was allowed on 07.07.2014 by setting aside the finding of payment of Rs.6,000/- and the decree with regard to payment of Rs.15,000/- with compound interest at the rate of 12% was affirmed. The decree was prepared on 06.08.2014 and the Execution Case No.2 of 2014 was filed by the respondent. The decree was prepared on 06.08.2014 and the Execution Case No.2 of 2014 was filed by the respondent. On 17.09.2014, the respondent filed an application before the Executing Court seeking permission to deposit the amount, as modified by the appellate Court i.e. amount of Rs.15,000/- with 12% compound interest. The petition dated 17.09.2014 reads as under: – 13. The petition dated 17.09.2014 was never pressed by the respondent. The Second Appeal No.253 of 2014 and 116 of 2015 filed by the petitioner-judgment debtor was dismissed by this Court on 28.10.2016. On 15.02.2018 the petitioner filed an application under Section 28 of the Specific Relief Act to rescind the agreement and decree, to which the respondent filed his rejoinder and also prayed for depositing the decreetal amount along with interest. On 13.03.2018 the respondents filed another application for extension of time for depositing the balance decreetal amount along with interest. Paragraph no.9 along with prayer of the petition dated 13.03.2018 reads as under: – 14. In this case, it is an admitted position that respondent-decree holder had filed an application 17.09.2014 seeking permission from the executing court for depositing the decreetal amount after it was modified by the appellate court and the same was heard on some dates but thereafter the same was kept pending in the court below. The suit has finally been decided till this Court on 28.02.2016 and thereafter two applications i.e. the application filed by the petitioner dated 15.02.2018 and application filed by the respondent dated 13.03.2018 have been preferred in the executing court and the impugned order extending the time for depositing the amount in question has been passed. It is an admitted position that the execution case was filed after the suit was allowed but subsequently the decree has been modified and it has been contested till this Court in Second Appeal. So, the decree became final only after disposal of the second appeal. Moreover, initially the respondent had filed an application on 17.09.2014 which was pressed by them but the court below did not proceed with the application and it appears that this was done by the Court below as the matter was pending in the appellate court as well as Second Appeal before this Court. Subsequently, the parties have filed two applications. Moreover, initially the respondent had filed an application on 17.09.2014 which was pressed by them but the court below did not proceed with the application and it appears that this was done by the Court below as the matter was pending in the appellate court as well as Second Appeal before this Court. Subsequently, the parties have filed two applications. One application filed by the petitioner under Section 28 of the Specific Relief Act for rescinding the agreement and another application filed by the respondent under Section 148 of the C.P.C. for extending the period to deposit the decreetal amount. 15. It will be relevant to quote section 148 of the C.P.C. reads as follows: – "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in it's discretion, from time to time, enlarge such period., even though the period originally fixed or granted may have expired." 16. In my opinion, the decree holder has rightly waited till the decision of the second appeal to deposit the decreetal amount as the same was modified in Title Appeal and non-deposit of the amount just after the decree will not take away the fruits of the decree. The plaintiff has not defaulted in the time and mode of deposit as the time was extended by the executing court under Section 148 Cr.P.C. and in my opinion, the discretion exercised by the executing Court in favour of the respondent is just and proper. A decree become final only after the final court pronounces its judgment on the appeals filed by the parties and the impugned order extending the time for depositing the decreetal amount does not suffer from any illegality. 17. For the foregoing reasons, I do not find any merit in this application. Accordingly, this application is dismissed. The Executing Court is directed to take further steps in accordance with law for execution of the sale deed as per the decree.