ARUN BHANSALI,J. - (1.) This revision petition under Section 115 CPC is directed against order dated 11.12.2014 passed by Additional District Judge No.1, Jodhpur Metro, whereby, the application filed by the petitioner under Section 151 CPC has been rejected. A suit filed by respondent No. 1 - Narayan Prakash, seeking specific performance of contract, came to be decreed by the trial court by its judgment and decree dated 26.09.2012. The decree- holder initiated proceedings for execution of the decree dated 26.09.2012.
(2.) During pendency of the execution proceedings, the present application under Section 151 CPC read with Section 141 CPC was filed by the judgment-debtor on 24.09.2014, inter alia, with the contention that as per the terms of the decree, the plaintiff was required to make payment of Rs. 16,20,000/- to him within a period of one month, which was required to be deposited with defendant No. 2 - the Financier and the balance amount was to be paid to the judgment-debtor; the amount was to be paid by 25.10.2012 with defendant No. 2 in cash and thereafter the balance amount was to be paid to him; the terms of the decree have been violated, inasmuch as, the plaintiff alongwith the execution application filed Form No. 3 and produced a cheque in the name of judgment-debtor for a sum of Rs. 16,20,000/- requesting that the original cheque be placed in safe custody; the notice of the execution application was not received by the judgment-debtor till 17.11.2012 and the amount was not deposited with the Bank prior to 25.10.2012 and, therefore, the terms of the decree were not fulfilled. Further submissions were made that in fact the decree-holder was not even having Rs. 16,20,000/- in his bank account and, therefore, the execution proceedings deserve to be quashed and set aside. A reply to the application was filed by the decree-holder respondent No. 1, inter alia, indicating that the cheque was deposited with the Court within one month, the property is still encumbered and that no willingness has been shown regarding execution of the sale deed, the decree-holder had made arrangement for payment of Rs. 16,20,000/- to the judgment- debtor, honouring of the cheque was decree-holder's responsibility, however, the judgment-debtor was not willing to honour the decree. The High Court passed stay order in favour of the judgment debtor on 24.02.2014, which was extended till 02.04.2014; whereafter the same has not been extended. It was submitted that the entire attempt on part of the judgment-debtor- petitioner is to delay the execution proceedings and, therefore, the application deserves to be dismissed.
(3.) The trial court after hearing the parties by its impugned judgment came to the conclusion that as per the decree, the decree-holder was required to pay a sum of Rs. 16,20,000/- to the judgment-debtor by 25.10.2012, the execution application was filed on 20.10.2012, from which, it is clear that the decree-holder was willing to execute the decree within the time fixed. The decree-holder not only filed execution application on 20.10.2012, a cheque of Rs. 16,20,000/- was also produced before the Court. Though the notices of the execution were served on the judgment- debtor on 18.12.2012, however, the decree-holder cannot be punished for the same. The Court also came to the conclusion that on service of the notices of execution, the judgment-debtor could have approached the Court and accept the cheque or could have asked for the amount in cash, however, the same was not done. The request made in the execution application for keeping the cheque in safe custody cannot be taken as any intention not to pay the same to the judgment-debtor.;