Sadanand S/O. Laxmanrao Wawre vs Smt. Anusaya Abaji Jivtode And ...
2022 Latest Caselaw 4220 Bom

20-WP5062.21-J                                                  1/13


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.

              WRIT PETITION NO. 5062          OF 2021

PETITIONER :-              Sadanand S/o Laxmanrao Wawre, aged
(Ori.Decree Holder)        about 57 years, Occ : Service, R/o.
                           Gorakshan      Ward,     Ballarpur, Tah.
                           Ballarpur, District Chandrapur.


                             ...VERSUS...


RESPONDENTS :-          1. Smt. Anusaya Abaji Jivtode, Age Major,
(Legal Heirs of Ori.       Occ-Nil, R/o Ward No.2, Post Warur,
Judgment Debtors)          Road, Tahsil Rajura, District Chandrapur.

                        2. Suresh S/o Abaji Jivtode, Age-Major,
                           Occ. Service, R/o. Police Qr. Tukum,
                           Chandrapur, District Chandrapur.

                        3. Ramesh S/o Abaji Jivtode, Age-Major,
                           Occ. Service, R/o. Srirampur, Tah.Rajura,
                           District Chandrapur.

                        4. Subash S/o Abaji Jivtode, Age-Major,
                           Occ. Service, R/o Ward No.2, Post Warur,
                           Road, Tahsil Rajura, District Chandrapur.

                        5. Sau.Surekha Eknath Borkute, Age Major,
                           Occ- Household, Ward No.2, Post Warur,
                           Road, Tahsil Rajura, District Chandrapur.

                        6. Sau.Sunita Gulab Dhanorkar, Aged about
                           Major,     Occ.    Household,     R/o.
                           Mukkampost,     Sindhi,  Po.   District
                           Chandrapur.


KHUNTE
 20-WP5062.21-J                                                                         2/13


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            Mrs. Renuka Sirpurkar, counsel for the petitioner.
              Mr. V.N.Morande, counsel for the respondents.
 -------------------------------------------------------------------------------------------


                                   CORAM : MANISH PITALE, J.

DATE : 21.04.2022.

ORAL          JUDGMENT


                 Heard.

2. Rule. Rule made returnable forthwith. The writ

petition is heard finally with the consent of the learned counsel for

the rival parties.

3. By this writ petition, the petitioner (original decree

holder) has challenged order dated 22/10/2021, passed by the

Court of Joint Civil Judge, Senior Division (hereinafter referred to

as "Executing Court"), whereby an application at Exhibit-34

seeking a specific direction, has been rejected.

4. The facts in brief leading up to filing of the present

writ petition are that the petitioner had filed a suit for specific

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performance against the predecessor of the respondents. The said

suit culminated in a compromise decree dated 24/09/2010. As

per the compromise decree, it was agreed between the parties that

the petitioner would obtain necessary permission for sale of the

said land from the concerned Authorities. Upon obtaining such

permission, the original vendor i.e. the predecessor of the

respondents would execute the sale deed within 15 days on

receiving the balance amount of consideration of Rs.2,40,000/-.

The compromise decree stipulated that the aforesaid sale would be

binding on the legal heirs of the original vendor and it was further

stipulated that in case the original vendor delays execution of sale

deed, the petitioner as the original plaintiff would be at liberty to

have the sale deed executed by initiating execution proceedings.

5. The record shows that the necessary permission for

sale of the land was obtained from the Competent Authority by the

petitioner on 03/12/2011. Immediately on 09/12/2011, the

petitioner issued notice through Advocate to the original vendor

i.e. the predecessor of the respondents to remain present before

the Registrar's office on 16/12/2011, for execution of the sale

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deed on which day the balance consideration amount of

Rs.2,40,000/- would be paid to him. The predecessor of the

respondents remained absent before the Registrar on 16/12/2011.

In these circumstances, the petitioner executed an affidavit stating

that he was present before the Registrar with the balance amount

of consideration and that the predecessor of the respondents

remained absent.

6. In terms of the aforesaid compromise decree, since the

predecessor of the respondents did not execute the sale deed,

execution proceedings were initiated before the Executing Court

bearing Special Darkhast No.103 of 2011.

7. The said execution proceedings have been pending

since then, wherein even during the lifetime of the original vendor

i.e. the predecessor of the respondents, the respondents had raised

objection in the execution proceedings, claiming that the

compromise decree was not binding on them. After the death of

the original vendor, the respondents have continued to raise

objections in the capacity of being the legal heirs of the original

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judgment debtor.

8. During the pendency of the said execution

proceedings, in the year 2021, land acquisition proceedings were

initiated under the National Highways Act, for 0.49 Are out of the

4 Acres of property which was subject matter of the compromise

decree.

9. In view of the said development in the year 2021, the

petitioner filed the aforesaid application at Exhibit-34 seeking

specific direction to the Executing Court. Although the prayer

made in the said application leaves a lot to be desired, a perusal of

the impugned order shows that it was specifically contended on

behalf of the petitioner that by the said application, he was seeking

a direction that the compensation amount in pursuance of such

land acquisition proceedings ought to be deposited in the

Executing Court, in the backdrop of the compromise decree and its

execution being pursued by the petitioner. In fact, the Executing

Court understood the relief sought in the said application as being

a prayer for deposit of the compensation amount in the Executing

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Court in view of pendency of the execution proceedings.

10. The said application at Exhibit-34 was opposed by the

respondents. By the impugned order, the Executing Court rejected

the application, inter alia, observing that the petitioner as a decree

holder would get right over the suit property only upon deposit of

the balance consideration amount and that it appeared that the

petitioner as the decree holder was not ready and willing to

perform his part of the contract as stated in the decree.

11. Mrs.Renuka Sirpurkar, learned counsel appearing for

the petitioner, submitted that the Executing Court not only erred in

rejecting the application at Exhibit-34, but the observations made

in the impugned order are damaging to the cause of the petitioner

while seeking execution of the aforesaid compromise decree. It

was submitted that there was no occasion for the Executing Court

to have made such observations. It was further submitted that the

prayer made in the said application was clearly understood by the

Executing Court as a direction to deposit the compensation

amount in pursuance of the execution proceedings before the

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Executing Court in the facts and circumstances of the present case.

The said prayer ought to have been considered in the correct

perspective and in the interest of justice such a direction ought to

have been granted. According to the learned counsel appearing

for the petitioner, considering the terms of the compromise decree,

and the nature of objections raised on behalf of the respondents,

the observations made regarding alleged lack of readiness and

willingness on the part of the petitioners were wholly

unwarranted, apart from the fact that they would damage the case

of the petitioner in the pending execution proceedings. On this

basis, it was submitted that the impugned order deserved to be set

aside and the application deserved to be granted.

12. On the other hand, Mr.Morande, learned counsel

appearing for the respondents, submitted that a proper

appreciation of the relevant terms of the compromise decree

would show that on failure of the predecessor of the respondents

i.e. the original judgment debtor in executing the sale deed, the

petitioner could have the sale deed executed by approaching the

Executing Court, but it was obvious that the petitioner as the

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decree holder was expected to deposit the balance consideration

amount before the Executing Court. It was submitted that

admittedly, the execution proceedings were initiated in the year

2011 and till date the petitioner as the decree holder had not

deposited the balance amount. In these circumstances, the

Executing Court was justified in making the aforesaid observations

and in dismissing the application at Exhibit-34. The learned

counsel for the respondents relied upon judgment of the Hon'ble

Supreme Court in the case of Chanda (Dead Through Lrs.) v.

Rattni and anr., reported in 2007 (3) ALL MR 341 (S.C.), by

emphasizing upon section 28 of the Specific Relief Act, 1963.

13. Heard the learned counsel for the rival parties and

perused the material on record. Perusal of the compromise decree

would show that there were certain obligations on both the parties

as agreed between them. It is undisputed that the requisite

permission was obtained by the petitioner from the concerned

Authority for the aforesaid transaction on 03/12/2011, and that

immediately on 09/12/2011, the petitioner caused a notice to be

issued through Advocate to the predecessor of the respondents to

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remain present before the office of the Registrar on 16/12/2011,

for execution of the sale deed, on which day the balance amount

of consideration of Rs.2,40,000/- was to be paid to the predecessor

of the respondents. Since the predecessor of the respondents

remained absent, in terms of the compromise decree, the

petitioner was constrained to initiate the execution proceedings,

which have remained pending for more than a decade. The

material on record shows that objections were raised not only by

the original judgment debtor i.e. the predecessor of the

respondents, but the respondents themselves on one count or the

other. Since the execution proceedings are pending, this Court

refrains from making any comment upon such objections and the

stand taken by the petitioner in that regard.

14. In the interregnum, the proceedings initiated under

the provisions of the National Highways Act for acquisition of 0.49

Are from the suit property resulted in the petitioner moving the

aforesaid application at Exhibit-34. As noted above, despite the

nature of prayer made in the application, the Executing Court

clearly understood the relief sought in the said application on

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behalf of the petitioner as a direction that the compensation

amount in pursuance of the said acquisition proceedings would

have to be deposited in the Executing Court.

15. While considering the said application, which was

opposed on behalf of the respondents, the Executing Court

referred to the compromise decree and thereupon gave a specific

finding that the petitioner as the decree holder appeared not to be

ready and wiling to perform his part of the contract as stated in

the decree. There can be no two opinions about the fact that the

aforesaid observation would be extremely damaging for the

petitioner while pursuing the aforesaid execution proceedings.

The said observation casually made by the Executing Court while

dealing with the application at Exhibit-34 will have a lasting

impact on the interpretation of the terms of the compromise

decree and the objections raised on behalf of the respondents

before the Executing Court.

16. This Court is of the opinion that there was no occasion

for the Executing Court to have made such scathing observations

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against the petitioner, which would prejudice his case going

forward in the execution proceedings. Therefore, the said

observations cannot be sustained at all.

17. In this light, the judgment upon which the learned

counsel for the respondents has placed reliance needs to be

considered.

18. Perusal of the same shows that in the said case, after a

decree was passed in a suit for specific performance, the judgment

debtor had moved a specific application under section 28 of the

aforesaid Act for rescinding the contract on the basis of subsequent

events. It was claimed therein that since the decree holder had

failed to abide by the directions given by the Court while decreeing

the suit for specific performance, a clear case for rescinding the

contract under section 28 of the aforesaid Act was made out.

During the course of considering such an application and its effect,

the Hon'ble Supreme Court proceeded to analyze section 28 of the

said Act and held in favour of the judgment debtor. The present

case is clearly distinguishable, firstly, because there is no

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application under section 28 of the said Act filed on behalf of the

respondents and secondly, because there is no application or

prayer made on behalf of the petitioner as the decree holder in the

context of the compromise decree, other than claiming that due to

failure on the part of original judgment debtor to remain present

and executing the sale deed in terms of the compromise, the

Executing Court ought to ensure that the sale deed is executed

through the Court. In absence of any such application or prayer

before the Executing Court, the invocation of section 28 of the said

Act cannot be countenanced and therefore, the said judgment of

the Hon'ble Supreme Court is wholly inapplicable in the facts and

circumstances of the present case.

19. In this backdrop, it becomes necessary to consider

whether the Executing Court ought to have granted the prayer

made on behalf of the petitioner in the application at Exhibit-34.

This Court finds that in the facts and circumstances of present case

wherein part of the suit land is subject matter of the acquisition, it

would be in the interest of justice that the compensation to be

determined ought to be deposited before the Executing Court,

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subject to the execution proceedings being finally disposed of.

This Court is the opinion that the prayer made on behalf of the

petitioner was reasonable and in furtherance of the interest of

justice. Therefore, interference in the impugned order is necessary.

20. In the light of the above, the writ petition is allowed.

The impugned order is quashed and set aside and the application

at Exhibit-34 is allowed. Consequently, it is directed that the

compensation pertaining to acquisition of 0.49 Are land out of the

suit land, which shall be determined, shall be deposited before the

Executing Court, pending further directions in the execution

proceedings.

21. Rule is made absolute in the above terms. No costs.

JUDGE

KHUNTE Signed By:GHANSHYAM S KHUNTE

Signing Date:22.04.2022 18:29