Andhra Pradesh High Court - Amravati
S. Subbanna And Others vs C.Alagappan And on 19 November, 2024
APHC010125092024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
TUESDAY, THE NINETEENTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CIVIL REVISION PETITION NO: 556/2024
Between:
S. Subbanna and Others ...PETITIONER(S)
AND
Sri Kuruguntlanarasimhulu Naidu and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. T DIWAKAR REDDY
Counsel for the Respondent(S):
1. T SREEDHAR
The Court made the following:
2
BSB, J
C.R.P.No.556 of 2024
ORDER:
The defendants are the absolute owners of the schedule property
of an extent of Ac.2.84 cents out of Ac.4.30 cents situated at YSR
Kadapa District, Sidhout Mandal, peddapalli grampanchayat, Peddapalli
village fields having succeeded through late Sammala Siddaiah who
purchased it on 26.08.1942 and died intestate. All the defendants
offered for sale of the schedule property of Ac.2.84 cents out of Ac.4.30
cents for Rs.87,33,000/-. The plaintiffs accepted the offer of the
defendants. The defendants received the advance of Rs.21,83,000/-
on 11.08.2011 and executed an agreement of sale acknowledging
receipt of advance amount. It was agreed that the plaintiffs shall pay
the balance of Rs.65,50,000/- on or before 10.04.2012.
b. In spite of repeated requests for execution of the sale deed, the
defendants paid deaf ear and as such, having vexed with the inaction of
the defendants, the plaintiffs are constrained to file the suit in O.S.No.6
of 2012 on the file of the Court of VI Additional District Judge, Kadapa,
for the relief of specific performance of agreement of sale in respect of
the suit schedule property and for costs. The defendants filed written
statement while admitting execution of sale agreement in favour of the
plaintiffs including receipt of advance amount of Rs.21,83,000/- and the
balance of sale consideration of Rs.65,50,000/- is agreed to be paid on
BSB, J
or before 10.04.2012. The defendants denied the other allegations in
the plaint. After framing of issues, the suit was posted for trial. The
plaintiffs filed affidavits in lieu of their examination-in-chief and got
marked exhibits A1 to A3. The suit was posted for cross-examination of
the plaintiff. The defendants were absent and therefore, cross-
examination of PW1 was treated as 'Nil' and the suit was decreed
ex parte on 05.06.2017.
2. The operative portion of the judgment, dated 05.06.2017, passed
in the suit reads as follows:
"In the result, the suit is decreed with costs granting specific
performance of sale agreement in favour of the plaintiffs. The
plaintiffs are directed to pay the balance consideration of
Rs.65,50,000/- to the defendants within two months from the
date of the decree, after receiving balance of sale
consideration, the defendants are directed to execute a
regular registered sale deed in favour of plaintiffs in
pursuance of sale agreement, dated 11-08-2011 in respect of
suit schedule property, failing which the plaintiffs are at liberty
to do the same by due process of law."
3. Thereafter, the plaintiffs/decree holders (DHrs) filed execution
petition under Order XXI Rule 34 CPC seeking a direction to the JDrs to
register the sale deed in their favour. But, the JDrs failed to obey the
decree and sought time till 2019. In the month of August, 2019, the
BSB, J
JDrs No.10 & 11 having half share over the suit schedule approached
the DHrs and requested for the amount to which they are entitled. On
05.09.2019, JDrs 10 & 11 received their half share of balance sale
consideration to a tune of Rs.32,84,500/- and executed registered sale
deed, vide document No.748/2019 in respect of their joint half share
which works out to 1.42 cents out of Ac.2.84 cents. However, JDr
Nos.1, 2 and 4 to 9 requested the plaintiffs not to deposit the amount
into Court as there is litigation with their descendants. As there is no
other option left, the plaintiffs filed execution petition in E.P.No.257 of
2022 under Order XXI, rule 34 CPC for registration of sale deed for the
EP schedule property of Ac.1.42 cents at their expenses. Thus, it is
contended on behalf of the DHrs that the JDrs 1, 2, 4 to 9 willfully failed
to obey the decree and execute the registered sale deed in their favour
excluding half share of Ac.1.42 cents covered under the registered sale
deed No.748/2019. Hence, the plaintiffs prayed to issue rule 22 CPC
notice to the JDrs 1, 2 and 4 to 9 to obey the decree and on their failure
to direct them to comply the decree, dated 05.06.2017.
b. A counter was filed on behalf of 1st respondent/JDr opposing the
execution petition and stating as follows:
The DHrs obtained an ex parte decree against the JDrs for
specific performance of agreement of sale, dated 05.06.2017. The
BSB, J
execution Court directed the DHrs to pay the balance of consideration of
Rs.65,50,000/- to the JDrs within two months from the date of decree,
i.e., 05.06.2017. After receiving the balance of sale consideration, the
defendants are directed to execute a regular registered sale deed in
favour of the DHrs in respect of the EP schedule property. Without
fulfilling the direction of the execution Court, the DHrs filed execution
petition against the JDrs for execution of sale deeds. Hence, the
execution petition itself is not maintainable. The DHr failed to deposit
the balance of sale consideration within the stipulated time and did not
even file any application for extension of time for deposit of balance sale
consideration. The DHrs willfully have not deposited the balance sale
consideration and the agreement of sale, dated 10.04.2012,
automatically rescinded under Section 28 of the Specific Relief Act. The
DHrs did not show sufficient cause for non-deposit of the balance sale
consideration within two months as per the direction of the Court. As
the prices of the subject land have abnormally increased now, the DHrs
filed execution petition for execution of sale deed without fulfilling the
condition. Hence, the DHrs are not entitled to any relief as prayed for
and the execution petition is liable to be dismissed.
c. A copy of the counter was served on the other side.
BSB, J
4. On 10.05.2023, a lodgment schedule was filed by the counsel for
the plaintiffs before the Court for issuance of challan for Rs.32,75,000/-
being half of the balance sale consideration. By docket order, dated
21.06.2023, the execution Court directed issue of challan for
Rs.32,75,000/- without notice to the other JDrs.
5. On 26.06.2023, the learned counsel for the plaintiffs filed memo
stating to the following effect:
"It is humbly submitted that, in obedience of Decree
passed in favour of plaintiffs on 05.06.2017, directing them to
pay the balance of sale consideration amount tune of
Rs.65,50,000/-. After receipt of certified copy of Decree &
judgment on 20.07.2017, the plaintiffs approached the
defendants No.1, 2 and 4 to 11 along with balance of sale
consideration to honour the Decree, but the defendants No.10
and 11 requested some time, whereas the other defendants
refused to receive the same. On 05.09.2019, the defendants
No.10 & 11 voluntarily receive their half share of balance of
sale consideration of their respective half share on suit
schedule property executed registered sale deed on 5.9.2019
vide Docn.No.748/2019. After that, we further approached the
remaining defendants and requested to execute the sale deed
in terms of decree & judgment subject to receipt of their
respective balance sale consideration, but the defendants
No.1, 2, 4 to 9 gave evasive reply till the year 2023.
BSB, J
Accordingly, the plaintiffs deposited half of balance
sale consideration on Rs.65,50,000/- works out to
Rs.32,75,000/- (Rupees Thirty two Lakhs seventy five
thousands only) into the CCD of this Hon'ble Court vide
CFMS ID No.7006781772023, dt. 06.2023. The original
deposited challan is herewith appended for kind perusal.
Hence, this memo."
6. This revision petition under Section 115 CPC is filed by the
petitioners/defendants 5, 8 & 9 against the docket order, dated
21.06.2023, in the lodgment schedule in O.S.No.6 of 2012 on the file of
the Family Court-cum-VI Additional District Judge, Kadapa.
7. Heard the learned counsel for the parties.
8. The contention of the revision petitioners/defendants is that the
trial Court has erroneously permitted the plaintiffs to deposit the balance
sale consideration on mere filing of a memo, dated 26.06.2023, without
providing an opportunity to the defendants to oppose the same, and
more particularly when the plaintiffs failed to show any reason for not
complying the direction in the decree for deposit of the balance amount
of consideration within the time stipulated in the decree. It is also
contended that neither the memo nor the affidavit filed along with the
execution petition indicate the reason(s) as to why balance amount was
not deposited within the stipulated time and it is only after the JDrs
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raised the point in their counter, suddenly, the DHrs filed the memo
seeking issuance of challan and later the memo, dated 26.06.2023,
9. The learned counsel for the petitioners placing reliance on the
following decisions; contended that the discretion under section 28 of
the Specific Relief Act, 1963 cannot be exercised without any valid
reason and that too, without notice to the defendants.
(i) V.S. Palanichamy Chettiar Firm Vs. C.Alagappan and
another1, wherein it was held at para 17 as under:
"17. The agreement of sale was entered into as far back on
February 16, 1980, about 19 years ago. No explanation is
forthcoming as to why the balance amount of consideration
could not be deposited within time granted by the court and
why no application was made under Section 28 of the Act
seeking extension of time of this period. Under Article 54 of
the Limitation Act, 3 years period is prescribed for filing the
suit for specific performance of contract of sale from the date
of the agreement or when the cause of action arises. Merely
because a suit is filed within the prescribed period of limitation
does not absolve the vendee- plaintiff from showing as to
whether he was ready and willing to perform his part of
agreement and if there was non-performance was that on
account of any obstacle put by the vendor or otherwise.
Provisions to grant specific performance of an agreement are
(1999) 4 Supreme Court Cases 702
BSB, J
quite stringent. Equitable considerations come into play.
Court has to see all the attendant circumstances including if
the vendee has conducted himself in a reasonable manner
under the contract of sale. That being the position of law for
filing the suit for specific performance, can the court as a
matter of course allow extension of time for making payment
of balance amount of consideration in terms of a decree after
5 years of passing of the decree by the trial court and 3 years
of its confirmation by the appellate court? It is not the case of
the respondent- decree holder that on account of any fault on
the part of the vendor- judgment-debtor, the amount could not
be deposited as per the decree. That being the position, if
now time is granted, that would be going beyond the period of
limitation prescribed for filing of the suit for specific
performance of the agreement though this provision may not
be strictly applicable. It is nevertheless an important
circumstance to be considered by the Court. That apart, no
explanation whatsoever is coming from the decree-holder-
respondents as to why they did not pay the balance amount of
consideration as per the decree except what the High Court
itself thought fit to comment which is certainly not borne out
from the record. Equity demands that discretion be not
exercised in favour of the decree holder-respondents and no
extension of time be granted to them to comply with the
decree."
BSB, J
(ii) In P.Shyamala Vs. Gundlur Masthan2, the petitioner sought to
deposit balance sale consideration of Rs.15 lakhs and filed a petition
under Section 28 of the Specific Relief Act after delay of 853 days and
the trial Court as well as the High Court allowed the plaintiff to pay
balance sale consideration, however with interest @ 18% per annum.
Simultaneously, the defendant also filed petition under the same
provision of law to rescind the agreement of sale, dated 09.05.2012, as
the condition was not complied with and the said petition was dismissed
by the trail Court as well as the High Court. The matter went upto
Supreme Court. After considering the legal propositions on this aspect,
as decided in V. S.Palanichamy Chettiar (supra) and distinguishing the
decision in Kishore Ghanshyamsa Paralikar (D) through L.Rs Vs.
Balaji Mandir Sansthan Mangrul (Nath) & Another (Civil Appeal
No.3794/2022, decided on 09.05.2022) on facts in relation to the case
before the Supreme Court, it disallowed the plaintiff to make the
payment of balance amount of consideration.
10. The learned counsel for the respondents placed reliance on the
following decisions:
Civil Appeal Nos.1363-1364 of 2023 (Arising from SLP (C) Nos.9504-9505/2022)
BSB, J
(i) Rajinder Kumar Vs. Kuldeep Singh 3 , wherein it was held at
paras 40 & 44 as follows:
"40. Analyzing the conduct of the vendors-defendants also,
one can see that they are equally at fault. In the contract, no
time was fixed for payment and, therefore, the purchaser was
obliged to pay the purchase money within a reasonable time.
Owing to the laches or lapses on the part of the parties in
case there is any insurmountable difficulty, hardship or, on
account of subsequent development, any inequitable situation
had arisen, either party was free to approach the court for
appropriate direction. Though the suit was decreed in the year
1984 and execution petition filed in 1990, the application for
rescission was filed only in the year 1999.
44. In the peculiar facts and circumstances of the case, we
are of the view that the trial court should have passed an
equitable order while considering the application for
rescission. Having regard to the fact that the decree was
passed in 1984, we feel that it would be unjust and unfair to
relegate the parties to the trial court at this distance of time.
For doing complete justice to the parties, we are of the view
that it is a case where the purchaser should be directed to pay
the land value to the vendors as per the circle rate notified for
the residential property in Category 'A' colonies prevailing
during November 16, 2011 to January 5, 2012, at the rate of
Rs. 2,15,000/- per square meter. The purchaser shall also be
liable to meet the liability arising by way of unearned increase
(2014) 15 Supreme Court Cases 529
BSB, J
to be paid to the Land and Development Office. He is free to
withdraw the amounts deposited by him in the court as per
order dated 06.01.2010. It is also ordered that in case the
Plaintiff does not deposit the amount to be paid to the vendors
within three months from today, the vendors shall deposit in
court within two months thereafter the amount calculated as
per the circle rate referred to above by way of compensation
to be paid to the purchaser, and in which event, they shall
stand discharged of their obligations under the contract and
the decree. In the event of the purchaser depositing the
amount as above, the execution proceedings shall be finalized
within another one month. The Court in seisin of the Suit OS
No. 1428 of 1981 shall dispose of the same within three
months from today.
ii. Chandra (Dead) through L.Rs v. Rattini and another4, it was
held at paras 7, 8 & 9 as follows:
"7. Section 28 of the Act reads as follows:
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 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
(2007) 14 Supreme Court Cases 26
BSB, J
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.
(2) Where a contract is rescinded under Sub-section (1),
the court--
(a) shall direct the purchaser or the lessee, if he has
obtained possession of the property under the contract, to
restore such possession to the vendor or lessor; and
(b) may direct payment to the vendor or lessor of all the
rents and profits which have accrued in respect of the
property from the date on which possession was so obtained
by the purchaser or lessee until restoration of possession to
the vendor or lessor, and if the justice of the case so requires,
the refund of any sum paid by the vendee or the lessee as
earnest money or deposit in connection with the contract.
(3) If the purchaser or lessee pays the purchase money or
other sum which he is ordered to pay under the decree within
the period referred to in Sub-section (1), the court may, on
application made in the same suit, award the purchaser or
lessee such further relief as he may be entitled to, including in
appropriate cases all or any of the following reliefs, namely:
(a) the execution of a proper conveyance or lease by the
vendor or lessor;
(b) the delivery of possession, or partition and separate
possession, of the property on the execution of such
conveyance or lease.
BSB, J
(4) No separate suit in respect of any relief which may be
claimed under this section shall lie at the instance of a vendor,
purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be
in the discretion of the court.
8. The present section corresponds to Section 35(c) of
the Specific Relief Act, 1877 (hereinafter referred to as the
'repealed Act') under which it was open to the vendor or lessor
in the circumstances mentioned in that Section to bring a
separate suit for rescission; but this Section goes further and
gives to the vendor or lessor the right to seek rescission in the
same suit, when after the suit for specific performance is
decreed the plaintiff fails to pay the purchase money within
the period fixed. The present section, therefore, seeks to
provide complete relief to both the parties in terms of a decree
for specific performance in the same suit without requiring one
of the parties to initiate separate proceedings. The object is to
avoid multiplicity of suits. Likewise under the present provision
where the purchaser or lessee has paid the money, he is
entitled in the suit for specific performance to the reliefs as
indicated in Sub-section (3) like, partition, possession etc. A
suit for specific performance does not come to an end on
passing of a decree and the Court which has passed the
decree for specific performance retains the control over the
decree even after the decree has been passed.
9. The decree for specific performance has been
described as a preliminary decree. The power under Section
28 of the Act is discretionary and the Court cannot ordinarily
annul the decree once passed by it. Although the power to
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annul the decree exists yet Section 28 of the Act provides for
complete relief to both the parties in terms of the decree. The
Court does not cease to have the power to extend the time
even though the trial Court had earlier directed in the decree
that payment of balance price to be made by certain date and
on failure suit to stand dismissed. The power exercisable
under this Section is discretionary. As rightly contended by
learned Counsel for the respondents the stand now taken was
not pleaded before the trial Court and the High Court. The
decision in Kumar Dhirendra's case (supra) is clearly
distinguishable on facts. In fact, it has been noted in that case
that the decree-holder was repeatedly assured of payment.
The situation is not the same here. The only stand taken was
that there was no direction to pay within a particular time. This
plea is clearly unsustainable and untenable and has been
rightly rejected."
(iii) Sardar Mohar Singh through power of Attorney Holder,
Manjit Singh Vs. Mangilal @ Mangtya5, wherein it was held at para
No.4 as follows:
"4. From the language of Sub-section (1) of Section 28, it
could be seen that the Court does not lose its jurisdiction after
the grant of the decree for specific performance nor it
becomes functus officio. The very fact that Section 28 itself
gives power to grant order of rescission of the decree would
indicate that till the sale deed is executed in execution of the
(1997) 9 Supreme Court Cases 217
BSB, J
decree, the trial Court retains its power and jurisdiction to deal
with the decree of specific performance. It would also be clear
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. In other
words, the Court has the discretion to extend time for
compliance of the conditional decree as mentioned in the
decree for specific performance. It is true that the respondent
has not given satisfactory explanation of every day's delay. It
is not, unlike Section 5 of the Limitation Act, an application for
condonation of delay. It is one for, extension of time. Under
these circumstances, the executing Court as well as the High
Court had exercised discretion and extended the time to
comply with the conditional decree. Accordingly, we do not
find any valid and justifiable reason to interfere with the order
passed by the High Court confirming the order of the
executing Court when in particular, the High Court has further
enhanced a sum of Rs. 16,000/- to compensate the petitioner
for loss of enjoyment of the money. The said amount is given
to the respondent in a sum of Rs. 16,000/-, rightly for the
reason that parties contracted for non-performance of the
contract. They quantified the damages at Rs. 2,000/- for 8
years. The Court has given Rs. 16,000/- obviously in terms of
the contract."
11. The decisions cited by both parties have the common principle
and there is no conflict.
BSB, J
12. In fact, in each case, depending upon the facts and
circumstances, a Court has to see whether permission under Section 28
of the Act can be granted or not.
13. In this case, the decree was passed on 05.06.2017 granting
specific performance while directing the plaintiffs to pay the balance
sale consideration of Rs.65,50,000/- to the defendants within two
months from the date of the decree, whereas the DHrs/plaintiffs did not
state anything in their affidavit filed along with the execution petition,
regarding any effort to make the payment of the said amount as per the
decree, but merely stated that they requested the JDrs to obey the
decree. When the memo, dated 26.06.2023, was filed, reason was
assigned stating that after the decree, defendants 1, 2 & 4 to 11 refused
to receive their part of balance sale consideration and execute the sale
deed, while defendants 10 & 11 voluntarily received half of the share of
the balance sale consideration as per the decree and executed a
registered sale deed on 05.09.2019. In the absence of reasons, much
less valid reasons, in spite of long delay between the date of decree,
i.e., 05.06.2017, and the date of memo, i.e., 10.05.2023, the trial Court
issued challan for deposit of Rs.32,75,000/- as per the order, dated
21.06.2023, i.e., before the memo, dated 26.06.2023.
BSB, J
14. It is important to note that before passing the impugned order on
21.06.2023, no opportunity was given to the defendants to oppose the
issuance of challan sought. No petition has been filed by the plaintiffs
seeking exercise of the discretion of Court under Section 28 of the
Specific Relief Act. Therefore, it is clear that the trial Court committed
serious error in passing the order to issue challan for payment of the
balance sale consideration without providing an opportunity to the
defendants to oppose it and without passing a reasoned order. As a
result, issuance of challan for deposit of amount cannot be treated as
extension of the time in the decree for payment of the balance amount
of consideration to the defendants till such deposit.
15. Accordingly, the Civil Revision Petition is allowed.
There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
__________________
B.S.BHANUMATHI, J
19.11.2024
RAR
