VINOD K.SHARMA, J. - (1.) PRESENT revision petition has been filed against an order passed by the learned Additional Civil Judge (Senior Division), Pehowa dismissing the application moved by the petitioner for execution of the decree of specific performance.
(2.) THE petitioner had filed a suit for possession by way of specific performance of agreement to sell dated 20.11.1990 vide which respondent Judgment-debtor had agreed to sell land measuring 1 kanal 14 marlas situated within the revenue estate of Pehowa. The learned trial Court was pleased to decree the suit with costs and directions were issued to the defendant to get the sale-deed executed and registered in favour of the decree-holder on payment of Rs. 3,850/- per marla less amount of Rs. 20,000/- already received by the defendant within a period of three months from the passing of the judgment. It was further directed that on the failure of the defendant Judgment-debtor to do so the plaintiff will be at liberty to get the sale-deed executed and registered through the court. The decree was passed on 13.10.1998. As the defendant failed to get the sale-deed executed on receipt of balance payment, the petitioner decree-holder moved an application on 24.4.2001 for execution of the decree passed by the learned trial Court. The decree-holder sought extension of time for deposit of the decretal amount whereas the same was objected to by the judgment-debtor by seeking recision of the contract. The learned Executing Court framed two points for consideration viz :- 1. Whether the time can be extended in favour of the decree-holder ? 2. If it can be extended then the Judgment-debtor's objection regarding recision of contract is to be thrown away and if the time cannot be extended then the objections of the Judgment-debtor will prevail. Learned counsel for the decree-holder claimed that it was on account of fault of the counsel that he was not made aware of the deposit and therefore, he should not be allowed to suffer on account of this. This contention was rejected for want of affidavit from his counsel or his clerk in this regard. It was further observed that even the decree-holder had failed to swear any affidavit in support of his contention. It was further claimed that the court did not lose power to extend the time after passing of the decree and further that the decree could be executed within 12 years from the date of its passing and therefore, the execution application was within time. The contention of the decree-holder further was that there was sufficient reason for the decree-holder not to deposit the money in time and further that even oral request for extension of time can be made. These contentions raised by the learned counsel for the decree-holder were rejected by the learned trial Court. The contention that the decree could be executed within 12 years was rejected on the ground that there was no sufficient ground for extension of time. The other contentions were held to be not arising on the facts of the case and accordingly, the prayer of the Judgment Debtor for recision of contract under Section 28 of the Specific Relief Act (for short the Act) was allowed. The Decree Holder filed an appeal against the decision of the Executing Court and the same was dismissed being not maintainable.
(3.) THE learned counsel for the petitioner by placing reliance on the judgment of Calcutta High Court in the case of Tivoli Park Apartments Pvt. Ltd. v. Kumar Dhirendra Mullick, 2000(1) RCR(Civil) 440 (Calcutta) contended that as the court had not fixed or allowed any period for depositing any money by the petitioner, therefore, Section 28 of the Act has no application in the present case. Learned counsel for the petitioner thereafter placed reliance on the judgment of this Court in the case of Smt. Sarupi and others v. Har Gian and others, AIR 1975 Punjab and Haryana 231 to contend that in case of default on the part of the decree-holder to deposit the money Judgment-debtor is entitled to apply for recision of contract under Section 28(1) of the Act. But so long as the Judgment-debtor does not apply for such relief the decree subsists and decree-holder can still execute it within a period of limitation by depositing the purchase money within the time allowed so extended. The contention of the learned counsel for the petitioner was that as the decree did not direct that in the event of default in deposit within the time fixed the suit shall stand dismissed, it was not open to the court to have rejected the application.;