Allahabad High Court
Jai Prakash Gaur vs Smt. Budha Devi And 4 Others on 22 April, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 4
Case :- WRIT - C No. - 20261 of 2013
Petitioner :- Jai Prakash Gaur
Respondent :- Smt. Budha Devi And 4 Others
Petitioner Counsel :- Siddhartha Srivastava,Himanshu Srivastava
Respondent Counsel :- A.K. Tiwari
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for both the parties.
Original Suit No.133 of 1989 Smt. Budha Devi vs. Ishwar Sharan Gaur was instituted for specific performance of an agreement for sale alleged to have been executed by the defendant Ishwar Sharan Gaur since deceased and survived by petitioner and proforma respondent nos. 2 to 5. It was alleged in the plaint that agreed sale consideration was Rs.50,000/- out of which the defendant had recived Rs.25,000/- as earnest money. The suit was decreed by Civil Judge (Senior Division), Deoria on 17.1.1996 and defendant was directed to execute the sale deed of the house in dispute in accordance with the terms of the agreement for sale in favour of the plaintiff and to deliver possession within thirty days. It was further directed that if defendant did not comply with the order within the time fixed then plaintiff would be entitled to initiate execution proceedings in the court. Against the said decree Civil Appeal No.8 of 1996 was filed in which initially stay order was granted but it was vacated on 26.5.1999. Ultimately appeal was dismissed by the Lower Appellate Court on 29.9.2005.
Execution application was filed by plaintiff decree holder respondent no.1 on 23.5.2001 through which prayer was made for permission to deposit the balance sale consideration of Rs.25,000/- in court. It is not clear as to why for two years no order regarding deposit was passed by the Executing Court. However, on 19.4.2003 the executing court directed the decree holder to deposit the amount. Thereafter it was deposited.
It is also not clear as to why even after deposit of the amount execution application remained pending for nine years. Ultimately sale deed was executed by the court on 24.8.2012. However, meanwhile on 13.1.2012 legal representative of the judgment debtor had filed an application before the Executing Court under Section 28 of Specific Relief Act for rescinding the agreement for sale and the decree. Executing court/Civil Judge (Senior Division), Court No.18, Deoria rejected the said application on 18.5.2012. Certified copy of the order indicates that it was passed in execution case no.2 of 2011 (sic) Budha Devi vs. Ishwar Sharan. Against the said order petitioner filed civil revision no. Nil of 2012. District Judge, Deoria dismissed the revision on 11.1.2013 holding the same to be not maintainable hence this writ petition.
In this writ petition on 18.4.2013 following order was passed:
"Put up on 22.4.2013 at 10 A.M.
Prima facie the court is of the opinion that immediately after the decree for specific performance was passed on 17.1.1996 remaining sale consideration of Rs.25,000/- should have been deposited by the decree holder. The amount was deposited on 22.4.2003. The court is tentatively of the opinion that 18% interest on Rs.25,000/- from the date of decree till actual deposit on 22.4.2003 should be paid by the decree holder. Sri Arvind Srivastava, learned counsel for decree holder respondents who appears through caveat expresses his clients' readiness to deposit the amount.
As far as judgment debtor is concerned, according to learned counsel for the decree holder judgment debtor has already sold the property in 2009 while the executing court executed the sale deed in favour of decree holder on 24.8.2012. The date of sale by judgment debtor in favour of Smt. Vinda Devi is 28.8.2009. Smt. Vinda also filed application under Order 21 Rule 97 C.P.C. which was dismissed uptil this court. Copy of order of this court has just now been supplied to learned counsel of the petitioner. Learned counsel for the petitioner seeks short time to verify the above facts of sale by the judgment debtor, petitioner to Smt. Vinda Devi and proceedings taken by Smt.Vinda Devi."
In reply to the inquiry posed by the above order learned counsel for the petitioner has raised a fantastic plea. According to him his father had only 1/6 share in the house in dispute. However, it is admitted to the petitioner that in 2009 petitioner's father sold the entire house to Smt. Vinda Devi. On inquiry from Court, learned counsel for the petitioner states that till date petitioner has not filed any suit for cancellation of the said sale deed which is more than three years old. Smt. Vinda Devi filed application under Order XXI Rule 97 C.P.C. which was dismissed. Against the said order she filed writ petition no.62605 of 2012 which was dismissed by this court on 6.12.2012. A copy of the judgment has been placed on record by learned counsel for the respondent no.1
Accordingly, I do not find least error in the impugned order. It may be mentioned that learned counsel for the petitioner categorically stated that his client was not ready to accept the amount of 18% interest on Rs.25,000/-.
Accordingly, it is directed that 18% interest on Rs.25,000/- from January 1996 to April 2003 shall be deposited by the decree holder before the executing court and within one week therefrom he must be delivered possession. Possession shall be delivered to the decree holder whether the petitioner is in possession or any other person. The amount so deposited may be kept in some good interest bearing account. Whenever petitioner or any of the respondent no. 2 to 5 file an application for withdrawal of the said amount the said amount along with accrued interest shall be returned to the applicant.
Writ petition is disposed of.
Order Date :- 22.4.2013
vkg
