PARWATI DEVI Vs. MAHABIR MAHTO

JUDGEMENT

(1.) AGGRIEVED by orders dated 08.01.2010 and 19.07.2010 in Execution Case No. 6 of 2006, the present writ petition has been filed. The plaintiff who is respondent in the writ petition filed Title Suit No. 91 of 1977, seeking a decree of specific performance of agreement dated 24.05.1968, which was decreed on 25.11.1978. The plaintiff was directed to deposit Rs. 1,500/ - within 30 days and the defendant was directed to execute sale -deed, within 60 days from the date of judgment. It is stated that the plaintiff did not deposit the amount of Rs. 1500/ - within 30 days in terms of judgment and order dated 25.11.1978 and therefore, application dated 01.01.1979 was filed by the plaintiff seeking extension of time for depositing Rs. 1500/ - however, the said application was dismissed on the same day, declining extension of time for depositing the said amount. The defendant who is petitioner herein preferred Title Appeal No. 10 of 1979 challenging judgment dated 25.11.1978 which was dismissed however, the second appeal preferred by the defendant being, S.A. No. 74 of 1984 was allowed by this Court vide order dated 11.05.1999 and thus, Title Suit No. 91 of 1977 stood dismissed. Challenging the order passed in second appeal, the plaintiff approached the Hon'ble Supreme Court by filing Special Leave Petition which was converted into Civil Appeal No. 1514 of 2000. The Civil Appeal preferred by the plaintiff was allowed on 11.01.2006 and thus, the orders passed in Title Suit No. 91 of 1977 and Title Appeal No. 10 of 1979 were restored. Thereafter, the plaintiff filed Execution Case No. 6 of 2006 in which an enquiry was made as to deposit of Rs. 1500/ - on 09.12.1978, as claimed by the plaintiff and a report was received from the Treasury which indicates that no such deposit was made on 19.12.1978. However, vide letter dated 08.01.2010, the trial court ordered the plaintiff to deposit a sum of Rs. 1500/ - and vide order dated 19.07.2010 the plaintiff was directed to submit proforma of sale -deed.

(2.) MR . Rajeev Ranjan Tiwary, the learned counsel appearing for the petitioner submits that, admittedly, in compliance of order in T.S. No. 91/1977 the plaintiff did not deposit Rs. 1500/ - within 30 days and he filed application dated 01.01.1979 seeking extension of time for depositing the said amount however, the prayer of the plaintiff was declined by the trial court and thus, in term of the decree in T.S. No. 91/1977 which enjoins the plaintiff to deposit a sum of Rs. 1500/ - within 30 days, the plaintiff did not comply the said order. Therefore, the defendant was not obliged to execute the sale -deed. In such view of the matter, the decree which is in two parts cannot be executed due to non -performance of his part by the plaintiff still, the trial court permitted the plaintiff to deposit a sum of Rs. 1500/ - which would amount to modifying the decree. It is submitted that order dated 01.01.1979 refusing extension of time was not challenged by the plaintiff and thus, the said order could not have been reviewed by the trial court by permitting the plaintiff to deposit a sum of Rs. 1500/ -. It is further submitted that before the Hon'ble Supreme Court a plea was taken by the plaintiff that he deposited a sum of Rs. 1500/ - on 19.12.1978 however, the proceeding in Execution Case No. 6 of 2006 clearly discloses that no such amount was deposited in the Treasury and thus, fraud was played upon the court by the plaintiff. The learned counsel for the petitioner relies on a decision of the Hon'ble Supreme Court in "Meghmala and others vs. G. Narasimha Reddy and others", reported in : (2010) 8 SCC 383 to contend that an order obtained by playing fraud upon the court is liable to be interfered by the Court.

(3.) HAVING considered the submissions of the learned counsel for the parties and after perusing the documents on record, I am of the opinion that the writ petition lacks merits for the reasons discussed, hereinafter. From the pleadings on record, it appears that the order passed in Title Suit No. 91 of 1977 and Title Appeal No. 10 of 1979 were set -aside in S.A. No. 23 of 1994 on the ground that the plaintiff failed to aver and demonstrate that he was ready and willing to perform his part of the agreement. Another ground taken by this Court for interfering with the orders passed by the courts below was that since the plaintiff has failed to deposit a sum of Rs. 1500/ - as ordered in Title Suit No. 91 of 1977, the plaintiff has failed to establish that he has the capacity to perform his part of the agreement. The said findings have been found by the Hon'ble Supreme Court unfounded in Civil Appeal No. 1514 of 2000. Referring to the contention that the plaintiff failed to deposit a sum of Rs. 1500/ - within 30 days and thus, the decree cannot be executed, I find that the Hon'ble Supreme Court has taken note of this fact and it has been found by the Hon'ble Supreme Court that a sum of Rs. 1500/ - was deposited on 19.12.1978. The learned counsel for the respondent has submitted that a copy of challan dated 19.12.1978 was filed as Annexure -5 to the Special Leave petition. The Hon'ble Supreme Court has recorded a finding that, "on perusal of the records, it appears that the deposit was made on 19.12.1978, that was well within one month time granted by the trial court by its judgment and decree dated 25.11.1978. Confusion appears to have arisen because notwithstanding the deposit, an application for extension of time was filed. The High Court should have ignored the application and should not have put any emphasis thereon as verification of the record would have revealed that the payment had been made". It is not disputed by the learned counsel for the petitioner that the trial court has power and jurisdiction to grant extension of time for depositing the decreetal amount.