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2024 DIGILAW 1421 (MAD)

Robert Bruce v. R. Raja Jeyasekhar (died)

2024-06-26

R.VIJAYAKUMAR

body2024
ORDER : R. VIJAYAKUMAR, J. 1. Both the revision petitions arise out of two Interlocutory Applications filed in O.S.No.148 of 2005 on the file of the Additional District Munsif, Padmanabhapuram. I.A.No.436 of 2018 was filed by the decree holder under Section 148 of C.P.C seeking extension of time for depositing the balance sale consideration. I.A.No.446 of 2018 was filed by the second defendant under Section 28 of the Specific Relief Act to rescind the sale agreement. Both the applications have been dismissed by the trial Court. Challenging the same, the above said revision petitions have been filed. 2. Since the issues involved in both the revision petitions are interconnected, they are heard together and disposed off by way of a common order. (A) The undisputed facts are as follows: 3. The first defendant in the suit is the absolute owner of the property. He had entered into a sale agreement with the plaintiff on 18.03.2005 wherein the total sale consideration was fixed at Rs.44,025/-. The plaintiff had paid an advance amount of Rs.5000/-. However, the first defendant had sold away the property to the second defendant by way of a sale deed dated 15.04.2005. Hence, the plaintiff had filed the above said suit on 01.06.2005 for the relief of specific performance as against both the defendants. 4. After contest, the suit was decreed on 23.03.2006 granting two months time to the plaintiff to deposit the sale consideration. The second defendant had filed A.S.No.74 of 2006 before the Subordinate Court, Padmanabhapuram and the same was dismissed on merits on 05.03.2007. The second defendant had filed S.A(MD).No.856 of 2007 before the High Court and this Court was pleased to set aside the judgement and decree and remitted it back to the First Appellate Court. After remand, the first appeal again dismissed on merits on 27.09.2011. Challenging the same, the second defendant had filed S.A(MD).No.1207 of 2011 and the same was dismissed by this Court on merits on 06.08.2013. 5. After dismissal of the second appeal by this Court, the plaintiff/decree holder had filed I.A.No.436 of 2018 on 25.04.2012 under Section 148 of C.P.C seeking extension of time for depositing the balance sale consideration. Challenging the same, the second defendant had filed S.A(MD).No.1207 of 2011 and the same was dismissed by this Court on merits on 06.08.2013. 5. After dismissal of the second appeal by this Court, the plaintiff/decree holder had filed I.A.No.436 of 2018 on 25.04.2012 under Section 148 of C.P.C seeking extension of time for depositing the balance sale consideration. While the said application was pending, the second defendant/judgment debtor had filed I.A.No.446 of 2018 on 23.01.2018 under Section 28 of the Specific Relief Act to rescind the sale agreement on the ground that the decree holder has not deposited the amount within the time frame fixed by the trial Court and the decree has become time barred. Both the applications were heard independently by the trial Court and separate orders were passed on 28.08.2019 dismissing both the applications. Challenging the same, the decree holder as well as the judgement debtor have filed the above revision petitions. (B) Contentions of the learned counsel appearing for the decree holder are as follows: 6. The learned counsel contended that after remand, the first appeal was dismissed on 27.09.2011 and within 7 months from the said date, the application seeking extension of time was filed on 23.04.2012. He had further contended that the second defendant had immediately filed S.A.(MD).No.1207 of 2011 on 20.03.2012 and the same was dismissed on merits only on 06.08.2013. Only after disposal of the appeal by the Appellate Court, the decree of the trial Court got merged with that of the Appellate Court and the decree becomes enforceable only from the said date. The Execution Petition having been filed on 23.04.2012 is not barred by limitation and it is within the time limit prescribed under Article 136 of the Limitation Act. He relied upon the judgment of the Hon'ble Supreme Court reported in Surinder Pal Soni Vs. Sohan Lal (D) Through legal heirs, 2020 (2) LW 897 in support of his contention. 7. The learned counsel appearing for the decree holder had further contended that the non-payment of the balance sale consideration within the stipulated time does not amount to abandonment of contract and consequential rescinding. The second defendant was hotly contesting the suit up to second appeal till 06.08.2013. Therefore, there was no wilful negligence on the part of the plaintiff in depositing the balance sale consideration 8. The second defendant was hotly contesting the suit up to second appeal till 06.08.2013. Therefore, there was no wilful negligence on the part of the plaintiff in depositing the balance sale consideration 8. The decree holder had bonafidely waited for disposal of the second appeal and thereafter, deposited the amount. Hence, the Executing Court ought to have allowed the application seeking extension of time. He relied upon a judgement of the learned Single Judge of this Court reported in Krishnamoorthy Vs. K. Shanmugasundaram and another, 2022 (3) CTC 78 in support of his contention. 9. The learned counsel appearing for the decree holder had further contended that the application under Section 28 of the Specific Relief Act was filed only on 23.01.2018 i.e. 5 years after dismissal of the second appeal. Therefore, the said application is clearly barred by limitation under Article 137 of the Limitation Act. Hence, he prayed for sustaining the order passed by the Executing Court in I.A.No.446 of 2018. (C) Contentions of the learned counsel appearing for the judgement debtor are as follows: 10. The learned counsel for the judgment debtor had contended that the decree for specific performance in the suit was granted on 23.03.2006, granting two months time to the decree holder to deposit the balance sale consideration. Therefore, the balance sale consideration ought to have deposited on or before 23.05.2006. Pending first appeal or second appeal, there were no interim orders by the Appellate Courts. Nothing prevented the decree holder from depositing the balance consideration and to prosecute the execution proceedings. Therefore, the present application filed under Section 148 of C.P.C seeking extension of time is clearly barred by limitation. 11. The learned counsel had further contended that only when the decree of the trial Court is reversed or modified by the First Appellate Court, merger of decree takes place. Only when there is merger of decree, the period of limitation would start running from the date of Appellate Court Decree. In the present case, the First Appellate Court as well as the Second Appellate Court have confirmed the judgment and decree of the trial Court and therefore, the limitation would start running from the date of the trial Court decree namely from 23.03.2006 onwards. In such circumstances, the application seeking extension of time filed on 23.04.2012 is clearly barred by limitation. In such circumstances, the application seeking extension of time filed on 23.04.2012 is clearly barred by limitation. He relied upon a judgment of the Hon'ble Supreme Court reported in Siraj-ul-Haq Khan and others Vs. The Sunni Central Board of Waqf U.P and others, AIR 1959 SC 198 to contend that unless an interim order of the Appellate Court stays the execution of the decree, the running of the period of limitation cannot be stopped in view of Section 15 of the Limitation Act. 12. The learned counsel for the judgement debtor had further contended that no reasons have been assigned by the decree holder for seeking permission of the Court to belatedly deposit the balance sale consideration. This will clearly establish the fact that the decree holder was not ready and willing to perform his part of the contract. He had further contended that it displays that he was not ready and willing from the date of the agreement till the date of execution of the sale deed. In the instant case, the decree holder having failed to deposit the balance sale consideration within the time fixed by the trial Court, he is certainly not entitled to the relief of extension of time. When the decree holder has not established his readiness and willingness, it is nothing but consequential that the agreement of sale is rescinded and the decree is declared to be in- executable. Hence, he prayed for confirming the order passed by the trial Court in I.A.No.436 of 2018 and to allow I.A.No.446 of 2018. 13. The learned counsel had further relied upon the judgement of the Hon'ble Supreme Court reported in Ram A Wadh (Dead) by LRs. and others Vs. Achhaibar Dubey and another, (2000) 2 SCC 428 to impress upon the Court that the plaintiff was not ready and willing to perform his part of the agreement can be raised by the subsequent purchaser of the property also. The learned counsel further relied upon a judgment of the Hon'ble Supreme Court reported in Ratansingh Vs. Vijaysingh and others, (2001) 1 SCC 469 to contend that when the Appellate Court dismisses the appeal, the limitation does not start running from the said date, but from the date on which the trial Court had passed the decree. The learned counsel further relied upon a judgment of the Hon'ble Supreme Court reported in Ratansingh Vs. Vijaysingh and others, (2001) 1 SCC 469 to contend that when the Appellate Court dismisses the appeal, the limitation does not start running from the said date, but from the date on which the trial Court had passed the decree. In such circumstances, in the present case, the limitation would start from 25.03.2006 onwards and the application for extension of time for payment of balance sale consideration having been filed on 23.04.2012 is clearly barred by limitation. 14. I have considered the submissions made on either side and perused the material records. (D) Analysis: 15. The Hon'ble Supreme Court in a judgement reported in Ramankutty Guptan Vs. Avara, AIR 1994 SC 1699 in paragraph No.7 has 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. 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.........” 16. A careful perusal of the judgment of the Hon'ble Supreme Court would clearly reveal that the application seeking extension of time has to be filed by the decree holder as interlocutory application in the suit and not in the execution petition and it should be disposed of according to law. In the present case, the trial Court has rightly entertained I.A.No.436 of 2018 filed under Section 148 of C.P.C by the plaintiff only on the original side and not on the execution side. In the present case, the trial Court has rightly entertained I.A.No.436 of 2018 filed under Section 148 of C.P.C by the plaintiff only on the original side and not on the execution side. Only if the extension petition is filed in the execution side, the question whether it is time barred under Article 136 of the Limitation Act would arise. In the present case, the application having been rightly filed as an interim application in a deemingly pending suit, the question of considering the limitation for filing such an application would not arise. The only question to be considered is whether the plaintiff has made out a reason for not depositing the decree amount within the time frame fixed by the trial Court or not. 17. The trial Court has decreed the suit on 23.03.2006 granting two months time to deposit the balance sale consideration. Therefore, the sale consideration ought to have been deposited on or before 23.05.2006. The first appeal has been filed by the judgment debtor on 23.05.2006 and it was dismissed on 05.03.2007. The second appeal was filed immediately and the same was allowed and remitted to the First Appellate Court on 03.08.2011. Within one month, the first appeal was dismissed on merits on 27.09.2011. Within seven months from the date, the plaintiff had filed an application seeking extension of time on 23.04.2012. Thereafter, the second appeal was numbered as S.A.(MD).No.1207 of 2011 and dismissed on merits on 06.08.2013. The dates and events captured above will clearly indicate that the second defendant was hotly contesting the suit without any delay at any stage of the proceedings. Therefore, the contention of the plaintiff that he was under bonafide belief that he could deposit the amount after knowing the outcome of the second appeal is a reasonable cause for not depositing the balance sale consideration. Therefore, the plaintiff had established his continuos readiness and willingness during the pendency of the proceedings also. 18. S.A(MD).No.1207 of 2011 has been disposed of on merits on06.08.2013. However, the application under Section 28 of the Specific Relief Act is rescind the contract was filed by the defendant only 23.01.2018, after 4 years from the date of disposal of the second appeal. 18. S.A(MD).No.1207 of 2011 has been disposed of on merits on06.08.2013. However, the application under Section 28 of the Specific Relief Act is rescind the contract was filed by the defendant only 23.01.2018, after 4 years from the date of disposal of the second appeal. The defendant was aware that the plaintiff had already filed an interlocutory application under Section 148 of C.P.C seeking extension of time on 23.04.2012, yet he has chosen to file an application for rescission of contract only on 23.01.2018 only as a counter blast and there is no bonafides in the said application. 19. While disposing S.A(MD).No.1207 of 2011, the High Court in paragraph No.16 has categorically held that the sale agreement which is projected by the second defendant is nothing but a concocted document. The sale agreement and the resultant sale deed in favour of the second defendant are concocted documents and no credence could be attached to them. When the second defendant claiming to be the purchaser from the first defendant has suffered such a finding in the second appeal, this Court is of the considered opinion that the second defendant would not have any locustandi either to challenge the application under Section 148 of C.P.C filed by the plaintiff or to file an application under Section 28 of the Specific Relief Act to rescind the contract. 20. In such circumstances, the trial Court was not right in dismissing I.A.No.436 of 2018 seeking extension of time and has rightly dismissed I.A.No.446 of 2018. 21. In view of the above said deliberations, CRP(MD).No.2070 of 2019 is allowed and CRP(MD).No.110 of 2020 is dismissed. No costs.