Chattisgarh High Court

Kailash Malghani vs R.C.Lalwani on 18 August, 2021

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                                                                            NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                         Reserved for orders on :26/07/2021
                             Order passed on : 18/08/2021
                             WP227 No. 578 of 2018
      Kailash Malghani S/o Bedaram Malghani, Aged About 49 Years, R/o
       Khaparganj (Masanganj), Bilaspur, Tahsil and District Bilaspur
       Chhattisgarh. (Decree Holder), District : Bilaspur, Chhattisgarh
                                                                   ---- Petitioner/
                                                                          Plaintiff
                                     Versus
     1. R.C. Lalwani S/o Pratap Rai, R/o H.No. B-20, Century Colony,
        Deendayal Upadhyay Nagar, Raipur, Tahsil and District Raipur
        Chhattisgarh., District : Raipur, Chhattisgarh
     2. Smt. Manju Lalwani W/o R.C. Lalwani, R/o H.No. B-20, Century Colony,
        Deendayal Upadhyay Nagar, Raipur, Tahsil and District Raipur
        Chhattisgarh. , District : Raipur, Chhattisgarh
                                                               ---- Respondents

Defendants/judgment Debtor

For Petitioner - Shri B.D. Guru, Advocate.

For Respondents - Shri A.K. Prasad, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order 18-08-2021

1. This petition under Article 227 of the Constitution of India has been

brought being aggrieved by the order dated 18-05-2018 passed by the Court of

District Judge Bilaspur in CS(A)/163/2015.

2. It is submitted that the petitioner is decree holder in Civil Suit No.163-

A/2015, by the judgment and decree dated 09-05-2016 the petitioner was

granted relief of specific performance of contract against respondent No.1 on

the terms mentioned in the decree itself. The respondents then filed an

application under Section 28 of the Specific relief Act read with Section 151 of

the CPC praying for cancellation of decree on the ground that the petitioner has

failed to get the sale deed executed on terms as ordered by the trial Court and

in the alternative it was prayed that the Court may passed order that the price

of the suit land be fixed at the current market rate and other reliefs.

3. The learned trial Court after hearing on the application has passed the

impugned order by which the agreement dated 29-10-2012 was rescinded and

the respondents were ordered to make refund of the amount received by them

in advance.

4. It is submitted by learned counsel for the petitioner, that the impugned

order is arbitrary, illegal and contrary to the law applicable on the facts and

circumstances of the case. The respondents/judgment debtors had concealed

this fact from the Court, that the dispute was regarding possession and title of

the suit land before the civil court. After the judgment and decree, the

petitioner/decree holder was always ready and willing to execute the sale deed.

The respondents-judgment debtors then provided this information about the

pendency of another dispute in civil court and also before the Court of Collector

in which one Ashok Kumar Chaturvedi is a party and on this basis the judgment

debtors gave assurance, that after settlement of dispute with the other party,

they will execute the sale deed. Therefore, it was the fault on the part of the

respondents and they have taken benefit of the same by leveling false

allegation against the petitioner, that he has failed to execute his part in the

performance of the contract. The learned Court below has not considered on

this facts and circumstances and passed the impugned order which is not

sustainable. The respondents have filed a civil suit against Ashok Kumar

Chaturvedi which is registered as Civil Case No. 20A/2017 praying for relief of

permanent injunction and other reliefs, which was a circumstance present.

Reliance has been placed on the judgment of Hon'ble the Supreme

Court in the matter of Chanda (dead) through LRs. Vs. Rattni and another,

(2007) 14 SCC 26. Reliance has been placed also on the judgment of Hon'ble

the Supreme Court in the matter of Surinder Pal Soni Vs. Sohan Lal (dead)

through legal representatives, (2020) 15 SCC 771. It is prayed that the

petition be allowed and the impugned order be set aside.

5. Learned counsel for the respondents opposes the petition, the argument

submitted and raised objection on the ground of maintainability of this petition

under Article 227 of the Constitution of India. It is submitted that the order

passed under Section 28 of the Specific Relief Act is appealable order.

Reliance has been place on the judgment of Madras High Court n the matter of

N.V.S.M. Anandvale Vs. K.T. Santhanakrishnan, 2010 AIR [Madras] 204. It is

submitted that the Madras High Court clearly held that the order passed under

Section 28 of the Specific Relief Act amounts to decree of a Court, therefore,

such order is appealable. Hence, the petition under Article 227 of the

Constitution may be dismissed on this ground.

Another objection raised by the counsel for the respondents is this, that

the present petition has become infructuous as the impugned order of the

Court has been complied by the respondents and the refund has been made

through a cheque which has been received and encashed by the petitioner. It is

further submitted, that there had been no dispute of any title or possession of

any person. The petitioner has made an attempt to take benefit of the civil suit

filed by the respondents which has no connection with matter. The respondents

were always ready to perform their part and comply with the order of the

decree against them. It is clearly failure on the part of the petitioner that the

sale deed could not be executed.

Reliance has been placed on the judgment of Hon'ble the Supreme

Court in the matter of Prem Jeevan Vs. K.S. Venkata Raman and another,

(2017) 11 SCC 57 in which it has been held that fault of the decree

holder/purchaser to pay decretal amount within time stipulated has resulted in

rescission of contract.

Reliance has also been placed upon the judgment of Hon'ble the

Supreme Court in the matter of Rajinder Kumar Vs. Kuldeep Singh and

others, (2014) 15 SCC 529 and on the judgment delivered by Hon'ble the

Supreme Court in the case of Bhupinder Kumar Vs. Angrej Singh, (2009) 8

SCC 766. It is submitted that the petition would neither maintainable nor has

any merits, therefore it may be dismissed.

6. In reply it is submitted by learned counsel for the petitioner that in the

case of civil suit for specific performance of a contract, the Court does not

become functus officio after passing of the decree. The Court while executing

the decree has powers to pass orders for extension of time for execution of

sale on performance of agreement. It is submitted that the cheque for refund of

the amount in compliance of the Court order was received by the petitioner

under protest, therefore, it cannot be said that the petitioner is not entitled to

challenge the impugned order. The petitioner had been always ready and

willing for performance of his part in the contract. It is failure of the respondents

which has resulted in non-execution of the sale deed. In reply to the objection

on maintainability of the petition, it is submitted that this petition under Article

227 of the Constitution is maintainable.

7. Considered on the submissions and perused the documents.

8. Objection on the ground of maintainability is dealt with at first. The

Madras High Court had in the case of N.V.S.M. Anandvale Vs. K.T.

Santhanakrishnan (supra) framed question on this context that whether

preference of revision as against the order passed by the lower Court invoking

Section 28 of the Specific Relief Act is appealable or revisional order. Para 9,

10 and 11 of the judgment are as under:-

"9. The learned senior counsel for the revision petitioner placing reliance on the decision of this Court in Narasimhan v. Balammal (1998) 2 MLJ 1995 would develop his argument to the effect that

earlier this Court in similar matter entertained revision and in such a case, this Court also could entertain these revisions. Whereas, the learned counsel for the defendant would submit that if the application under Section 28 of the Specific Relief Act is allowed, then there (sic) emerges a decree rescinding the very agreement to sell itself and it is quite obvious that from any decree, appeal would lie as per Section 96 C.P.C. read with Order 41 Rule 1 of C.P.C, but on the other hand, if such an application is dismissed, then alone the question of filing revision would arise. I would like to agree with the view expressed by the learned counsel for the defendant. In fact, the decision of this Court in Narasimhan v. Balammal (supra) as cited by the learned senior counsel for the revision petitioner was relating to a case where the petition under Section 28 of the Specific Relief Act was dismissed and whereupon, revision was filed and the said case was not relating to a case where application under Section 28 of the Specific Relief Act was allowed.

10. At this juncture, it is worth and necessary to refer to the definition of decree as per Section 2(2) of C.P.C. and the same is extracted here under:

"2(2) "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b)any order of dismissal for default." The ingredients of decree would run thus:

A "decree" has to have the following essential elements, namely: (1) There must have been an adjudication in a suit (ii) the adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy, (iii) such determination must be a conclusive determination resulting in formal expression of the adjudication.

11. I would also incidentally like to refer to the decision of the Hon'ble

Apex Court reported in (2005) 9 SCC 262 (Kumar Dhirendra Mullick and others v. Tivoli Park Apartments (P) Ltd.) cited by the learned Senior Counsel for the revision petitioner himself, wherein the facts are that on the rescission of the agreement to sell under Section 28 of the Specific Relief Act, there arose an appeal and not a revision. Section 28 of the Specific Relief Act is reproduced hereunder for ready reference .........."

This has been similarly held by Bombay High Court in the case of Hari

V. Mahadu Kerba Tekale (D) by L.Rs., AIR 2006 Bombay 327.

9. After considering on the submissions and the case law cited on the point

of maintainability of this petition under Article 227 of the Constitution of India, I

am of this view that the impugned order is appellable and the Court exercising

the jurisdiction under Article 227 of the Constitution cannot act in a manner as

the appellate Court acts and exercises the power in appeal and neither would

go into the facts of the case to reverse the finding of the facts which has been

arrived at in the trial Court. The question raised by the petitioner in this petition

is based on fact that he was always ready and willing for performance of the

contract which has been disputed by the respondents side. It was held in the

case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil,