Mallela Rajaram Reddy, vs Narahari Venkata Lakshumma,
2023 Latest Caselaw 2186 AP

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            THE HON'BLE DR.JUSTICE K. MANMADHA RAO

      CIVIL REVISION PETITIONS No.526 AND 584 of 2021

COMMON ORDER:

       As the issue involved in both the civil revision petitions is

one and the same, these matters are taken up together for

disposal by this Common Order.

       2. Heard Mr. V.V. Satish, learned counsel appearing for the

petitioner and learned counsel appearing for the respondents.

3. The CRP No.526 of 2021 is preferred against the order

and decree, dated 11.02.2021 passed in E.A.(SR) No.5352 of 2018

in E.P.SR.No.5351 of 2018 in O.S.No.42 of 2013 on the file of the

II Additional District Judge, Kadapa and the CRP No.584 of 2021

is preferred against the order dated 11.02.2021 passed in E.A.(SR)

No.5353 of 2018 in E.P.SR.No.5351 of 2018 in O.S.No.42 of 2013

on the file of the II Additional District Judge, Kadapa.

4. The petitioner herein is the Decree Holder and the

respondent herein is the Judgment Debtor before the Court below.

Originally the suit in O.S No.42 of 2013 was filed before the II

Additional District Judge, Kadapa (for short "the Court below") by

the plaintiff seeking for specific performance of registered

agreement of sale dated 25.03.2013 executed by the defendant

and her father in favour of plaintiff to the extent of the land to be

registered by the defendant and for permanent injunction. The

same was decreed by the trial Court vide judgment dated

13.07.2018. Thereafter, the petitioner/Decree Holder filed the

present impugned EA (SR) No.5352 of 2018 under Section 148,

Section 14 read with Section 151 CPC to enlarge the time to

deposit the balance of sale consideration till pending disposal of

application for ascertaining the net extent of petition schedule

property to assess the net balance amount payable to the

respondent/J.Dr. and also EA (SR) No.5353 of 2018 was filed

under Order XXI Rule 18-A r/w Section 151 of CPC to appoint

Advocate Commissioner to localize the petition schedule property

with the help of Mandal Surveyor of Proddatur Mandal with the

specific meets and bounds and engraft the extent in the Regular

Registered Sale Deed to be executed in favour of the petitioner.

However, the same were rejected by the Court below vide separate

orders dated 11.02.2021. Aggrieved by the same, the present CRP

has been filed.

5. Insofar as CRP No.526 of 2021 is concerned, on

perusing the material available on record, it establishes that the

petitioner/Decree holder obtained decree against the

respondent/Judgment Debtor for specific performance of

Agreement of Sale dated 25.03.2013 and directed the petitioner to

deposit the balance of share of sale consideration in the Court

within 45 days from the date of judgment and that the petitioner is

at liberty to deduct the stamp duty and registration charges of

Rs.1,50,000/- with interest @ 6% p.a. from the date of filing of suit

till the date of realization.

6. As seen from the decree in O.S.No.42 of 2013, it

established that the suit was decreed on 13.07.2018 and that the

petitioner has to deposit the balance of sale consideration on or

before 27.08.2018. Since the petitioner filed the application along

with E.P and another E.A. to ascertain the next extent of petition

schedule property to pay balance of sale consideration beyond the

period of 45 days fixed by the Court below at the time of passing

judgment without seeking extension of period of 45 days by filling

application. It is clearly stated that as per law, if the

petitioner/plaintiff did not deposit the balance of sale

consideration within the time fixed by the court below at the time

of passing judgment, the agreement of sale will automatically be

rescinded without seeking extension. It is also well settled law that

even though there is no specific time fixed by the Court to deposit

balance of sale consideration and the time is fixed for execution of

sale deed by the J.Dr in favour of D.Hr., it could be said that the

D.Hr has to deposit the balance of sale consideration within the

time fixed for execution of sale deed.

7. In the instant case, the Court below has fixed time to

deposit the balance of sale consideration as such it is for the

petitioner to deposit the same within the time fixed by the Court

and if it is not so, the petitioner has to sought for extension of time

under Section 28 of Specific Relief Act.

8. Learned counsel for the petitioner submits that the order

passed by the court below is erroneous and is vitiated by improper

appreciation of evidence on record. He submits that the petitioner

had filed the petition under Section 48 section 14 r/w Section 151

CPC to enlarge time to deposit balance consideration but the court

below failed to come to conclusion. The court below also failed to

see that the petitioner requested the J.Dr to receive balance of sale

consideration and execute regular sale deed after measuring the

schedule properties and to deliver the same at which time it came

to light that Decree schedule property was sold away to third

parties who were in occupation by raising structures as scuh the

petitioner filed the application to enlarge time fixed by the Court

below. He further submits that the court below failed to see that

merely as the application is Execution Application but not it is

Interlocutory Application filed for extension of time in suit under

Section 148, Sec.14 r/w Section 151 of CPC will not take away the

right of the petitioner, as there is no raider for deposit of the

amount within stipulated time is the decree.

9. Learned counsel for the petitioner has placed reliance on

judgment of Hon'ble Supreme Court reported in Bhupinder

Kumar versus Angrej Singh1, wherein the Apex Court held that :

In K. Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar 2, the Court has held that the court has power under Section 28 of the Act to extend time for making deposit. The following conclusion in para 4 is relevant : (SCC p.633)

4. t is perfectly open to the court in control of a suit for specific performance to extend the time for deposit, and this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour. The disentitling circumstances relied upon by the defendant- respondent are off-set by the false pleas raised in the course of the suit by him and rightly negatived. Nor are we convinced that the application for consideration and extension of time cannot be read, as in substance it is, as a petition for more time to deposit. Even so, specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief. The final end of law is justice, and so the means to it too should be informed by equity. That is why he who seeks equity shall do equity. Here, the assignment of the mortgage is not a guideless discharge of the vendor's debt as implied in the agreement to sell but a disingenuous disguise to arm herself with a mortgage decree to swallow up the property in case the specific performance litigation misfires. To sterilise this decree is necessary equity to which the appellant must submit herself before she can enjoy the fruits of specific performance.

In Kumar Dhirendra Mullick v. Tivoli Park Apartments (P) Ltd 3, this Court after analyzing ealier decisions, has concluded that (SCC p.264a-c):

"When the court passes the decree for specific performance, the contract between the parties is not extinguished. The court does not lose tits jurisdiction after the grant of the decree for specific performance nor does it

(2009) 8 Supreme Court Cases 766

(1980) 1 SCC 630

(2005) 9 SCC 262

become functus officio. The decree for specific performance is in the nature of preliminary decree and the suit is deemed to be pending even after the grant of such decree. Hence, the court retains control over the entire matter even after the decree. Section 28 gives power to grant order of rescission of the agreement which itself indicates that ill the sale ded is executed, the trial court retains its power and jurisdiction to deal with the decree of specific performance. Therefore, the court has the power to enlarge the time in favour of the decree holder to pay the amount or to perform the conditions mentioned In the decree for specific performance."

In another case reported in Sardar Mohar Singh through

power of Attorney Holder, Manjit Singh versus Mangilal alias

Mangtya4, wherein the Hon'ble Apex Court held that :

3. Shri R.S. Suri, the learned counsel for the petitioner, contended that in view of the inordinate delay of 7 ½ years in making the application and in view of the finding given by the executing court that no proper explanation was given by the respondent for the delay, the execution court as well as the High Court committed an error of law in directing extension of time there being no proper explanation. The High Court also was wrong in its conclusion that the decree can be treated to be a preliminary decree and, therefore, the direction can be granted in the final decree. It is also contended that the court has no power to extend time. We do not find force in any of these contentions. It is seen that sub section (1) of Section 28 of the Specific Relief Act, 1963 gives right to the judgment debtor to file an application to rescind the contract. It reads as under:

Section 28 in The Specific Relief Act, 1963

28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.--

(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the

(1997) 9 Supreme Court cases 217

purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.

10. Learned counsel for the respondent has also placed

reliance on judgment of Hon'ble Supreme court reported in P.

Shyamala versus Gundlur Masthan5, wherein the Hon'ble Apex

Court held that:

4................. The parties, however, entered into a compromise and invited the court to make an order in terms of the compromise, which the court did. The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause; And, where the contract of the parties has merged in the order of the court, the court's freedom to act to further the ends of justice would surely not stand curtailed.

11. Having regard to the facts and circumstances of the

case and on perusing the citations of Hon'ble Apex Court referred

to above, this Court observed that the court does not lose its

jurisdiction after grant of decree for specific performance nor it

becomes functus officio. The very fact that Section 28 itself gives

Law Finder Doc Id # 2140017

power to grant order of rescission of the decree would indicate that

till the sale deed is executed in execution of the decree, the trial

Court retains its power and jurisdiction to deal with the decree of

specific performance. It is also observed that the court has power

to enlarge the time in favour of the judgment debtor to pay the

amount or to perform the conditions mentioned in the decree for

specific performance, in spite of an application for rescission of the

decree having been filed by the judgment debtor and rejected.

12. In view of the foregoing discussion, this Court is of the

considered view that while setting aside the order of the Court

below dated 11.02.2021 passed in E.A.(SR) No.5352 of 2018 in

E.P.SR.No.5351 of 2018 in O.S.No.42 of 2013, one week time is

extended to the petitioner/ judgment debtor to deposit the balance

of sale consideration, from the date of receipt of a copy of this

order. Therefore, the CRP No.526 of 2021 is liable to be allowed.

13. Insofar as CRP No.584 of 2021 is concerned, the trial

Court has rejected the impugned EA(SR) No.5353 of 2018 on the

ground that, first of all the petitioner/D.Hr has to deposit the

balance of sale consideration within the time limit fixed by the

Court at the time of passing judgment and thereafter the petitioner

has to secure Registered Sale Deed and then only he has to seek

for delivery of property. In view of the time granted by this Court

in EA (SR) No.5352 of 2018 in CRP No.526 of 2021, the impugned

order passed by the Court below in EA (SR) No.5353 of 2018 in

E.P.SR.No.5351 of 2018 in O.S.No.42 of 2013 in CRP No.584 of

2021 is liable to be set aside and the EA (SR) No.5353 of 2018 in

E.P.SR.No.5351 of 2018 in O.S.No.42 of 2013 is liable to be

restored to its file.

14. Accordingly, both the Civil Revision Petitions are

allowed. The impugned orders dated 11.02.2021 in both the civil

revision petitions are hereby set aside. Further, the EA (SR)

No.5353 of 2018 is restored to its file for adjudication in

accordance with law.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 21. 04.2023.

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THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

CIVIL REVISION PETITIONS No.526 AND 584 of 2021

Date : 21 .04.2023

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