ASHA RANI Vs. JASBIR SINGH

JUDGEMENT

(1.) JASBIR Singh filed suit for possession through specific performance against Smt. Asha Rani of agreement to sell dated 18.4.91 with regard to plot No. 28-A of 15 marlas alongwith 9 shops and 7 rooms and courtyard therein and water pump and electric fitting on payment of a sum of Rs. 2,60,000/- minus Rs. 50,000/- which was alleged to have been paid to Asha Rani by Jasbir Singh at the date of the execution of the agreement as earnest money. It was civil suit No. 1 dated 2.8.91, which was decreed with costs by Additional Civil Judge, Senior Division, Phagwara on 26.2.96. Plaintiff was directed to deposit the balance consideration of Rs. 2,10,000/- in Court within three months and Smt. Asha Rani was to execute regular sale deed in favour of the plaintiff (Jasbir Singh) within three months from the deposit of the balance consideration by the plaintiff in Court, Rs. 4952/- was assessed as costs incurred by plaintiff Jasbir Singh.

(2.) SMT . Asha Rani filed appeal against this decree on 28.4.96. In appeal, execution of the sale deed was stayed by the appellate Court on 10.5.96. Appeal was dismissed by District Judge, Kapurthala on 16.11.98. Smt. Asha Rani went in regular second appeal No. 265/99 to the High Court, which was dismissed on 11.5.1999. Thereafter, Jasbir Singh filed execution case No. 4 of 16.1.99 in the Court of Additional Civil Judge, Senior Division, Phagwara. Within three months of the date of the dismissal of the appeal by District Judge, Kapurthala Jasbir Singh deposited Rs. 2,10,000/- minus Rs. 4952/- i.e. costs awarded by the trial Court to him. He depoisted Rs. 2,05,048/- in the trial Court on 15.1.99 thereby adjusting the remaining amount of Rs. 4952/- towards costs awarded to him by the trial Court. In the execution, Smt. Asha Rani took up objection to the executability of the decree saying that the decree-holder could not call upon her to execute the sale deed per the decree granted to him by the Court because he had defaulted on two counts; one, he had deposited amount of Rs. 2,05,048/- on 15.1.1999 whereas he had been called upon to deposit the amount of Rs. 2,10,000/-. Deposit made by him thus fell short of the amount, which he had been called upon to deposit per the terms of the decree. Two, decree holder had been enjoined to deposit a sum of Rs. 2,10,000/- within three months from the date of decree dated 26.2.96. He was, thus, required to deposit Rs. 2,10,000/- on or before 25.5.96 instead, he deposited the amount on 15.1.99, which was not in compliance with the decree. It was urged by Smt. Asha Rani that the execution of the decree, thus, could not be had.

(3.) MR . M. L. Saggar, Learned counsel for the petitioner-defendant judgment- debtor submitted that Additional Civil Judge, Senior Division, Phagwara had decreed the suit of the plaintiff-respondent-decree holder for possession by way of specific performance of the agreement to sell dated 18.4.91 on his depositing the balance sale consideration to the tune of Rs. 2,10,000/- within three months of 26.2.96 i.e. when the decree was passed. He deposited Rs. 2,05,048/- which was not in compliance with the terms of the decree. It was submitted that the intention of the decree was that he should deposit Rs. 2,60,000/- minus Rs. 50,000/-, which he had already paid as earnest money within three months of the date of decree i.e. 26.2.96. It was submitted that he had no business to adjust Rs. 4952/- which was costs of the suit while depositing the amount. He could have recovered the costs of the suit through execution. He had no business to tinker with the direction given in the decree. He further submitted that he did not deposit this amount soon after the decree of District Judge, Kapurthala. He was absolved of depositing the amount by District Judge on the appeal of Smt. Asha Rani. On the appeal of Smt. Asha Rani, operation of the decree passed by Additional Civil Judge, Senior Division, Phagwara was stayed by District Judge, Kapurthala. It was submitted by him that the appellate Court just dismissed the appeal of Asha Rani but gave no direction to Jasbir Singh that he shall deposit the amount within such and such period. It was submitted that when there was no direction by the appellate Court as to the time within which the said deposit was to be made by the plaintiff-decree, the plaintiff-decree holder was bound to make the deposit soon after appeal was decided. Appeal was decided on 16.11.98. Plaintiff-decree-holder deposited the amount on 15.1.1999. It was submitted that there were two lapses on the part of the decree holder, which stand in his way of reaping the fruit of decree and calling upon defendant-judgment debtor Asha Rani to execute the sale deed. In support of this submission that the plaintiff-decree-holder could not adjust the amount of costs towards the amount, which he was required to deposit by the terms of the decree, he drew my attention to V.S. Palanichamy Chettiar Firm v. C. Alagappan, (1999) 4 Supreme Court Cases 702 : 1999(1) RRR (Civil) 634. In this case, the appellant as owner of the property being two plots of land each measuring 60' x 40', entered into two separate but similar agreements of sale dated 16.2.1980 with the respondent decree-holders. Since the judgment-debtor failed to perform his part of the agreements, the decree-holders filed suits for specific performance of the contract of sale in the Court of the District Munsif, Pudukottai. The suits were decreed in favour of the respondents with a direction to them to deposit the balance amount of consideration and with further direction to the appellant to execute the sale deeds. The suits were decreed on 31.1.1983 and the balance consideration amount was to be deposited on or before 31.3.1983. Against the judgment and order decreeing the suits, the appellant filed appeals in the High Court which were dismissed on 28.2.1985. The High Court, while dismissing the appeals of the judgment- debtor, did not grant any extension of time to the respondents for deposit of the balance amount of consideration. Respondent decree-holders filed applications for execution of the decrees of specific performance of the contract after five years of the decrees by the trial Court and three years after dismissal of the appeals by the High Court. One of the contentions raised by the appellant judgment-debtor was that the respondent decree-holders had failed to deposit the balance amount of consideration in terms of the decrees. In one case, the balance consideration amount was deposited much after the period granted in the decree and in the other case, no amount of the balance consideration was at all deposited. The executing Court, by order dated 2.9.1984, dismissed the execution applications of the respondent decree-holders holding that they did not pay the amount of balance consideration within the time stipulated under the decrees. Against this order, two revisions were filed in the High Court by the respondent decree-holders. It was not disputed that there was a delay in complying with the terms of the decrees which were conditional. In the course of proceedings before the High Court, the respondent decree-holders filed separate applications seeking extension to time granted under the decrees by the trial Court to deposit the amount. When the appellant judgment-debtor objected to the filing of the applications on the ground that these could not be maintained in the High Court and no such application was filed in the trial Court, the High Court remitted the matter to the executing Court with a direction to treat the applications as interlocutory applications in the execution proceedings and to dispose of them in accordance with law. At the same time, the High Court also said that in view of the decision of this Court in Sardar Mohar Singh through Power-of-Attorney Holder Manjit Singh v. Mangilal alias Mangtya, 1997(2) RCR(Civil) 296 (SC) : (1997)9 SCC 217, the lower Court has got power to extend the time. Aggrieved appellant judgment-debtor filed appeals. Hon'ble Supreme Court allowed these appeals with costs observing that under Section 28 of the Specific Relief Act, applications for extension of time to deposit the amount could be made to the trial Court/Executing Court but while extending the time to deposit the amount, the Court should see whether when extension is applied for, there is still limitation for filing suit for specific performance. Learned counsel for the petitioner drew my attention to Onkar Nath v. Basheer, (1985-2) PLR 432 where it was held that "if the purchaser had made an arrangement for the money and the petitioners refused to accept the same, they could deposit the amount in the Court and apply for execution of the decree. But for the reasons best known to them they did not adopt that course. They even did not serve any notice on the petitioners that they (petitioners) had refused to accept the money and execute the sale deed. The seller has been given a right to make an application or rescission of the contract after the decree has been passed against him, if the purchaser fails to pay the purchases money as directed by the Court within the prescribed period or such further period as the Court may allow. The contract of sale cannot be rescinded on any other ground except the one provided in Section 28 of the Specific Relief Act. As already observed, the respondents failed to pay the sale consideration within the prescribed period and they did not apply for extension of the period for doing so. Therefore, the petitioners became entitled to get the contract rescinded."