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GURJEET SINGH versus SUKHDEV SINGH & ANR

High Court of Punjab and Haryana, Chandigarh

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Gurjeet Singh v. Sukhdev Singh & Anr - ESA-2534-2005 [2006] RD-P&H 3210 (16 May 2006)

In the High Court of Punjab and Haryana at Chandigarh

......

E.S.A. No.2534 of 2005 (O&M)

.....

Date of decision:26.7.2005

Gurjeet Singh

...Appellant

v.

Sukhdev Singh and another

...Respondents

....

Present: Shri L.N. Verma, Advocate for the Appellant (Defendant- Judgment Debtor).

Shri Vikas Kumar, Advocate for the Caveator (Decree-Holder).

.....

S.S. Saron, J.

This execution second appeal has been filed by the defendant No.2-Judgment Debtor (`JD No.2' - for short) against the order dated 6.6.2005 passed by the learned Additional District Judge, Sirsa whereby his appeal against the order dated 7.8.2004 passed by the learned Civil Judge (Junior Division), Dabwali has been dismissed.

Sukhdev Singh, plaintiff-decree holder (`DH' for short) filed a suit titled Sukhdev Singh v. Jaspal Singh seeking decree for possession by specific performance of an agreement for sale. The suit was decreed by the trial Court on 8.8.2000 in his favour. The appellant/JD No.2 and Jaspal Singh defendant/JD No.1 together filed an appeal against the said judgment and decree which was dismissed by the learned Additional District Judge, Sirsa on 14.10.2003. Thereafter, Gurjeet Singh, appellant/JD No.2 filed ESA No.2534/2005 (O&M)

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Regular Second Appeal No.5738 of 2003, titled Gurjeet Singh v. Sukhdev Singh in this Court which was dismissed on 16.12.2003. The plaintiff/DH filed execution of the decree passed in his favour against the defendants/JDs for execution of the sale deed in terms of the decree passed in his favour and for delivery of possession of the suit land. The appellant/JD No.2 filed objections stating that as per the judgment of the learned Additional District Judge, Sirsa dated 14.10.2003, the decree holder was to pay the remaining sale consideration of Rs.75,000/- within two months and Jaspal Singh, defendant/JD No.1 was to execute the sale deed and the appellant/JD No.2 was to deliver possession of the suit land. However, the DH did not pay the remaining sale consideration of Rs.75,000/- within the stipulated period of two months. Therefore, the judgment and decree had become inexecutable as the JD No.1 had already entered into an agreement of sale in favour of the appellant/JD No.2 and had delivered possession thereof. Therefore, the appellant/JD No.2 had become owner in possession of the suit land.

Accordingly, it was prayed that the execution petition be dismissed. In reply, it was stated by the plaintiff/DH that against the judgment and decree dated 14.10.2003 passed by the learned Additional District Judge, Sirsa the appellant/JD No.2 filed regular second appeal in this Court which was dismissed on 16.12.2003. The DH in the meanwhile filed the execution petition on 10.12.2003 within the stipulated period of two months of the passing of the judgment by the learned Additional District Judge, Sirsa. It is the judgment debtors who delayed the execution of the sale deed and delivery of possession of the suit land. The JD Jaspal Singh, it was stated, had already received the remaining sale consideration of Rs.75,000/- and had also executed the sale deed but as per the decree of the learned Additional District Judge, Sirsa, the appellant/JD No.2 did not simultaneously deliver the possession of the suit land. It is stated that he had filed objections just to delay the decree for possession and deprive the DH of the fruits of the decree.

The learned Civil Judge (Junior Division) vide order dated 7.8.2004 dismissed the objections of the appellant/JD No.2 which were assailed by him before the learned Additional District Judge which has also dismissed the same vide his impugned order dated 6.6.2005. The said order ESA No.2534/2005 (O&M)

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is assailed in this appeal.

Shri L.N. Verma, Advocate, learned counsel for the appellant/ JD No.2 submits that in terms of the judgment and decree dated 14.10.2003 passed by the learned Additional District Judge, Sirsa, the plaintiff/DH was required to deposit the balance sale consideration of Rs.75,000/- within a period of two months. It is submitted that the plaintiff/DH admittedly having failed to deposit/pay the balance amount within the stipulated period of two months, the decree became inexecutable and the appellant/JD No.2 no longer remained bound to deliver possession. It is contended that it is settled law that where the decree-holder fails to deposit/pay the balance sale consideration within the stipulated period fixed by the decree, the decree becomes inexecutable.

In response, Shri Vikas Kumar, Advocate, learned counsel appearing for the plaintiff/DH submits that against the judgment and decree dated 14.10.2003 the appellant/JD No.2 filed regular second appeal in this Court which was dismissed on 16.12.2003. In any case, the plaintiff/DH filed the execution petition on 10.12.2003 within the period of two months in which he also prayed for depositing the remaining sale consideration and for summoning the defendant/JD No.1 Jaspal Singh to execute the sale deed in favour of the plaintiff and for directing the appellant/JD No.2 to hand over possession to him. It is further contended that defendant/JD No.1 executed the sale deed in favour of the plaintiff/DH on 12.4.2004 and, therefore, the objection, if any, no longer survives as the execution of the sale deed was to be done by respondent/ JD No.1 which has been done and now appellant/JD No.2 is required to hand over the possession of the land in compliance with the decree. In the circumstances, it is contended that both the Courts below have rightly dismissed the objections of the appellant/JD No.2.

I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties. It is appropriate to note that an agreement of sale dated 12.1.1996 was entered into between the plaintiff/DH and defendant/JD No.1. In pursuance of the agreement, a sum of Rs.50,000/- was received by defendant/JD No.1 as earnest money. The appellant/JD No.2 was in possession of 18 Kanals 8 Marlas of land being 1/4th share of land measuring 73 Kanals 11 Marlas. Defendant/JD No.1 and his brothers ESA No.2534/2005 (O&M)

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Gurpal Singh and Sukhcharan Singh were owners in possession of 31 Kanals 11 Marlas of land being 631/1271 share of land measuring 63 Kanals 11 Marlas. The said land was exchanged between the appellant/JD No.2 and the defendant/JD No.1 and his brothers and in this regard report Roznamcha No.170 dated 23.1.1997 was entered. Besides, mutation No.2235 of exchange was sanctioned on 24.1.1997. The last date for execution of the sale deed by defendant/JD No.1 was 15.1.1997 which as per the case set up by the plaintiff/DH was not adhered to by the defendants and since defendant/JD No.1 failed to execute the sale deed on or before 15.1.1997, the plaintiff/DH filed the civil suit for possession by specific performance of the agreement dated 12.1.1996 which was decreed by the trial Court on 8.8.2000.

Both the defendants filed a joint appeal before the District Judge Sirsa and while the appeal was pending before the learned Additional District Judge, Sirsa on 1.4.2003, the defendant/JD No.1 withdrew his appeal and the appeal was dismissed qua him on the said date. The appellant/JD No.2 pursued his appeal which was dismissed on 14.10.2003. Defendant/JD No.1 was directed to execute the sale deed in favour of the plaintiff/DH within a period of two months from 14.10.2003. The appellant/JD No.2 preferred RSA No.5738 of 2003 in this Court which was dismissed on 16.12.2003.

However, in the meantime, the plaintiff/DH filed execution application on 10.12.2003 for execution of the decree directing defendant/JD No.1 to execute the sale deed in his favour after receiving the balance sale consideration and in the alternative an official of the Court may be deputed to execute the sale deed in respect of the suit land on behalf of defendant/JD No.1 in favour of the plaintiff/DH. During the pendency of the execution application, the defendant/JD No.1 on 12.4.2004 on receiving the sale consideration executed the sale deed. The appellant/JD No.2 thereafter filed supplementary objections to the effect that plaintiff/DH and defendant/JD No.1 had colluded with each other and without any order from the Court, the defendant/JD No.1 had executed the sale deed on 12.4.2004 which created no title in favour of the plaintiff/DH. Therefore, supplementary objections dated 27.4.2004 were being filed to avoid multiplicity of litigation between the parties.

The question, therefore, that requires to be seen is whether any ESA No.2534/2005 (O&M)

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benefit accrues in favour of the appellant/JD No.2 to avoid the decree and not hand over the possession of the suit land to the plaintiff/DH on account of the delay in deposit of the sale consideration by the plaintiff/DH.

Section 28 of the Specific Relief Act, 1963 inter alia provides that where in any suit a decree for specific performance of the contract for sale of immovable property has been made and the purchaser does not within the period allowed by the decree or such other period as the Court may allow pay the purchase money or other sum which the Court has ordered him to pay, the vendor may apply in the same suit in which the decree is made to have the contract rescinded and on such application the Court may by order rescind the contract either so far as the party in default or altogether, as the justice of the case may require. The exercise of jurisdiction under Section 28 is discretionary and normally the Courts would not under the slightest pretext annul a decree passed by it unless there is a clear-cut case of default. Shri Verma, however, has referred to the cases of Dr. J.S. Mumick v. Dhanda Engineer (P) Ltd., 1970 PLR 565, Onkar Nath and another v. Basheer and others, 1985 (2) PLR 432 (P&H) and Chanda v. Rattni, 1999 (4) RCR (Civil) 621 (P&H), to contend that failure on the part of the purchaser to pay the balance sale consideration or deposit the amount in Court stipulated in terms of the decree would entitle the Judgment Debtors to rescind the contract.

There is no dispute to the said proposition. However, the important aspect to note in the case in hand is that the entitlement of rescinding the contract accrues to the seller and the seller in the present case is defendant/JD No.1 who has accepted the sale consideration and executed the sale deed in favour of the plaintiff/DH on 12.4.2004. Therefore, it does not lie for the appellant/JD No.2 who was to deliver possession in consequence of the decree to raise objections in this regard. Shri Verma has further referred to the case of Bindru v. Kikru and others, AIR 1988 J&K 1, wherein a Full Bench of the J&K High Court held that the Court passing a decree in a suit for pre-emption has no power to enlarge the time for making the deposit of purchase money because after passing of the decree no lis is pending before it and period for depositing of the money is a condition of the decree and court loses control over the matter soon after it decides the matter and passes a decree. The said case is a case relating to pre-emption and it is no doubt ESA No.2534/2005 (O&M)

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that the Court becomes functus officio after a decree is passed. However, in the present case it is during execution that the seller i.e. Defendant/JD No.1 accepted the sale consideration and executed the sale deed. Even otherwise the case of pre-emption would not apply to the case in hand as a decree for specific performance of a contract of sale is in the nature of a preliminary decree and the Court has full jurisdiction to prescribe a time limit for depositing the decretal amount but has no jurisdiction to provide for dismissal of suit in default of payment since that would destroy the character of the decree. Therefore, though the seller has a right for rescission of the decree for specific performance of contract for sale of land in the event of the purchaser failing to pay the sale consideration within the prescribed period.

However, on the acceptance of the sale consideration and execution of the sale deed, he would be deemed to have acquiesced in his rights. Even otherwise, the right that is there is that of the seller and the appellant/JD No.2 is not the seller but rather defendant/JD No.1 is the seller. Therefore, the appellant/JD No.2, in any case, has no right in the matter.

Another contention that has been raised by the learned counsel for the appellant/JD No.2 is that the execution application has been filed for execution of the decree of the trial Court and not that of the appellate Court.

In this regard, a perusal of the application dated 28.11.2003, certified copy of which has been placed on record would show that the plaintiff/DH filed execution application for directing Jaspal Singh, defendant/JD No.1 to execute the sale deed in respect of the suit land after receiving the remaining sale consideration. Besides, for directing Gurjeet Singh, appellant/JD No.2 to hand over the possession of the suit land to the plaintiff/DH and for permission to deposit the remaining sale consideration in the Court.

Therefore, from the application dated 28.11.2003 and from the prayer clause it cannot be said that the plaintiff/DH had filed the application for execution of the decree dated 8.8.2000 passed by the trial Court and not that of the lower appellate Court dated 14.10.2003. Even otherwise the said alleged defect is of a formal nature only and no right accrues in favour of appellant/JD No.2 to avoid the decree. As, has already been noticed, defendant/JD No.1 has accepted the amount of Rs.75,000/- and executed the sale deed. The other part of the decree regarding handing over the possession ESA No.2534/2005 (O&M)

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is to be done by the appellant/JD No.2, which he is required to carry out.

Therefore, no fault can be found with the orders of the Courts below in dismissing the objections of the appellant/JD No.2.

For the foregoing reasons, there is no merit in this appeal and the same is accordingly dismissed.

July 26, 2005. (S.S. Saron)

Judge

hsp


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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