MAHESH GROVER, J. - (1.) THE petitioners impugn the order dated 6.8.2009 (Annexure P -1). Initially, a suit for specific performance was filed on 27.8.1998 which was decreed ex -parte on 1.3.2000. The petitioners were required to deposit the balance amount of the sale consideration within a period of
(2.) MONTHS which they did on 28.4.2000 i.e. within the time stipulated in the decree. 2. The respondents then moved an application under Order 9 Rule 13 C.P.C. seeking setting aside of the decree dated 1.3.2000. The petitioners did not oppose this application and consented to the restoration of the suit which was then contested by the parties on merits. The petitioners were granted the liberty to withdraw the amount which they had deposited, which they did so. The suit was decreed after contest again on 17.3.2004 and the petitioners were required to deposit the amount within two months and the sale was to be executed within one month after the date of deposit. The respondents then filed Regular First Appeal No.1525 of 2004 in this High Court but on account of the intervening circumstances, the appeal was transferred to the District Judge when his pecuniary jurisdiction was enlarged. The respondents who had preferred the appeal, withdrew the same on 1.11.2007. In the meantime, the petitioners moved an application on 17.5.2004 within the period prescribed in the decree seeking information as to whether any interim stay has been granted on the decree which was in their favour. This application was dismissed by order dated 3.11.2004 which is on record as annexure P -10 with an observation by the Court that the petitioners were at liberty to deposit the amount at their own risk and responsibility as there was no stay on the decree. The petitioners then deposited the amount on 4.11.2004 and preferred an execution on 13.12.2004. The respondents filed objections which are on record as Annexure P -14 and pleaded that they had initiated a suit for rescinding the contract with the petitioners and thus, the execution should be kept in abeyance. This suit was filed by the respondents on 25.4.2005, but for reasons best known to them, it was withdrawn on 21.5.2008. Then the impugned order was passed on 6.8.2009 holding that the decree was inexecutable as the amount was not deposited within the stipulated period and which is now the cause of grievance to the petitioners.
(3.) LEARNED counsel for the petitioners contends that once the Court had exercised its discretion by permitting the petitioners to deposit the amount at their own risk and responsibility and which the petitioners did, then it should be construed to be an act of enlargement of time by the Court and in this regard he has placed reliance on the decision rendered by the Hon'ble Supreme Court in Md.Alimuddin v. Waizuddin and another (1998(9) J.T. 137) wherein the Hon'ble Supreme Court noticed that if the time granted by the decree expires and the decree holder is granted permission to deposit the amount at his own risk and responsibility, then it would be construed to be an act of extension of time.;