- (1.) S. U. Khan, J. Heard learned counsel for the parties on several dates.
(2.) THIS writ petition has been filed by judgment-debtor. Petitioner-judgment-debtor executed an agreement for sale in favour of respondent on 16. 7. 1990 agreeing to sell his land admeasuring 0. 83 acres @ Rs. 17,000 per biswa and received Rs. 10,000 as earnest money. Thereafter respondent filed Original Suit No. 281 of 1989 against the petitioner for specific performance of the aforesaid agreement for sale. (In between Rs. 80,000 had been paid as part of sale consideration ). The suit was decreed by Civil Judge (Senior Division) Varanasi on 31. 7. 1998,. Against the said judgment and decree appeal was filed by the petitioner but the said appeal was dismissed for non-payment of the court fees. (Naturally there was no question of any stay order in appeal as it was defective ). Thereafter plaintiff filed execution in the form of Execution Case No. 43 of 1998, on 6. 10. 1998. In the operative portion of the decree it was provided as follows : "defendant is directed that in case plaintiff within two months pays him the entire balance sale consideration then the defendant should execute the sale-deed in terms of the agreement, otherwise plaintiff would be entitled to deposit the balance sale consideration in the Court and get the sale-deed executed through Court. Sale-deed will be registered only when plaintiff files approval of competent authority under the Ceiling Act and no objection certificate from Income-tax department. " Copy of the order sheet of executing court has been annexed alongwith supplementary affidavit dated 27 11 2006 filed by the petitioner. In the order sheet of 27. 2. 1999 it is mentioned that the decree holder should within one month file no-objection from the Ceiling Officer and shall deposit the remaining amount in Court. Thereafter 12 dates were fixed but the case could not be taken up. Thereafter on 22. 12. 2000 it was mentioned that the file should be put up on 12. 1. 2001 and decree holder should comply with the order dated 27. 2. 1999. Similarly, on 12. 1. 2001 it was directed that the file should be put up on 3. 2. 2001 and decree holder should comply with the order dated 27. 2. 1999. Thereafter on 3. 2. 2001 judgment-debtor filed objections under Section 28 of Specific Relief Act read with Section 47, C. P. C. , which were directed to be registered as miscellaneous case. In the said order it is also mentioned, "decree holder has moved an application for accepting the tender. Keep it on file. Put up on the date fixed for disposal. Put up on 2. 3. 2001 for disposal. " Objections of the judgment-debtor were registered as Miscellaneous Case No. 40 of 2001. Thereafter 20 dates were fixed but the cases could not be taken up. Thereafter on 23. 8. 2002 execution was dismissed and objections of judgment-debtor under Section 28, Specific Relief Act were allowed. The said order is Annexure T to the writ petition. In the said order it was noted that till the date of the said order balance sale consideration had not been deposited by the decree holder. It was further directed that judgment- debtor should return the earnest money within a month. The Court while passing the order dated 23. 8. 2002 placed reliance upon the Supreme Court authority in V. S. Palanichamy Chettiar Firm v. C. Alaqappan, AIR 1999 SC 918 : 1999 (2) AWC 1033 (SC ). Thereafter decree holder filed review petition before the executing court. The successor Presiding Officer of the Court concerned allowed the review petition through order dated 7. 7. 2003 and set aside the order dated 23. 8. 2002 passed by his predecessor. Copy of the order on review petition is Annexure-3 to the writ petition. It is interesting to note that even until the date on which review was allowed, i. e. , 7. 7. 2003 the balance sale consideration had not been deposited by the decree holder. In the review order it is mentioned that on 3. 2. 2001 decree holder had submitted the tender, which was sufficient. Submitting the tender never amounts to payment. In the review order it is also mentioned that learned counsel for the decree holder stated that the balance consideration had been deposited, however, the said statement was wrong, as on the file there was no such evidence. In Para 2 of review petition, copy of which is Annexure-II to the writ petition, it was falsely stated that balance sale consideration had already been deposited within the time extended by the Court. After deciding the review petition on 7. 7. 2003 the executing court on 29. 7. 2003 disposed of application of the decree holder for permission to deposit the money. The application was allowed at decree holder's own risk. The said order is also included in the copy of the order sheet filed alongwlth supplementary-affidavit of the petitioner dated 27. 1. 2006. Against the order dated 7. 7. 2003 petitioner judgment-debtor filed Miscellaneous Civil Appeal No. 105 of 2003. A. D. J, Court No. 7, Varanasi dismissed the appeal on 29. 4. 2004, hence this writ petition.
(3.) AFTER the decision of the appellate court the Civil Judge (Senior Division) Varanasi executed the sale- deed on 10. 10. 2005, copy of which is annexure to the supplementary-affidavit dated 1. 2. 2006 filed by the petitioner. In the said sale-deed it is mentioned that the balance sale consideration of Rs. 3,60,000 and odd was deposited by the decree holder in Court on 1. 8. 2003. Through this writ petition orders dated 7. 7. 2003 and 29. 4. 2004 have been challenged.;