- (1.) Vide impugned order dated 12.2.2011, the execution application of the petitioner was dismissed mainly on the ground that the petitioner/decree-holder (herein referred as 'the petitioner') despite efficacious remedy available to him, has filed the second execution application which was not maintainable.
(2.) The factual back ground of the case is that the petitioner had obtained a decree for specific performance from the court of Additional Civil Judge (Senior Division), Jagraon, on 10.11.2005, which attained finality. The operative part of the decree is re-produced as under:- "...Accordingly, the suit of the plaintiff is hereby decreed exparte with costs for possession of the suit land by way of specific performance of the agreement to sell dated 22.12.2003. The defendant is directed to get the sale deed executed and registered in favour of the plaintiff within two months from today on receiving the balance sale consideration, failing which the plaintiff shall be at liberty to get the sale deed executed through court by way of filing the execution application."
(3.) Pursuant to the said decree, the decree-holder filed execution on 4.2.2006, wherein the judgment-debtor/respondent filed objection petition on the ground that the sale consideration was not deposited by the petitioner within the time which was a condition precedent for enforcement of the decree. Reply to the said objection petition was filed by the decreeholder pleading as under:- "As regard para No.4 of the objections, it is submitted that in the judgment and decree there is no order to decree holder to deposit the balance sale consideration in the court within specified period but in case the Hon'ble Court passed order to deposit the balance sale consideration, the decree-holder is ready to deposit the same immediately.";