Jharkhand High Court
Ajay Kumar Verma vs Margaret Ane Roy And Others on 25 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 127 of 2019
Ajay Kumar Verma ... ... Appellant
Versus
Margaret Ane Roy and others ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Rupesh Singh, Advocate
For the Respondents : Mr. Radhe Shyam Pandey, Advocate
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17/25.03.2025 Hering of this case has commenced.
2. This appeal was admitted for final hearing vide order dated 16 th
September, 2019 after framing the following substantial questions of
law:-
" (i) Whether in a suit of specific performance
there cannot be a judgment of reversal of the decree
of trial court stands satisfied by execution through
the process of court even prior to institution of appeal
and there does not exist any decree in the eyes of law
to be set aside/reversed the order of the trial court
reversed by the appellate court.
ii. Whether the 1st Appellate court has committed
an error of law by reversing the judgment & decree of
the Trial Court on the basis of additional evidence led
by appellant/defendant without granting opportunity
of rebuttal to the respondent/plaintiff.
iii. Whether the 1st appellate court has committed
serious jurisdictional error in not resorting to the
provisions of Order 41 Rule 23A or Order 41 Rule 25
CPC after passing a judgment of reversal on the basis
of additional evidence under Order 41 Rule 27?
3. Learned counsel for the appellant has submitted that the
plaintiff is the appellant before this court. The suit was arising out of
Specific Performance of Contract and the judgment was passed in
favour of the plaintiff on 25.01.2006. The decree was drawn on
14.02.2006 and the decree stood satisfied on 07.09.2006 as the court
concerned had directed to execute the sale deed in favour of the
plaintiff. The plaintiff had certainly deposited the balance
consideration amount for the purposes of execution of the sale deed.
4. He has further submitted that much after satisfaction of the
decree, the appeal was filed before the First Appellate Court on
15.09.2007 and delay in filing the appeal was also condoned.
However, at the first Appellate stage, certain documents were
exhibited as additional evidence particularly the document regarding
revocation of the judgment passed in the Probate case No. 141 of 1993
and the probate was revoked and it was converted into a Title Suit and
Title Suit was numbered as 2 of 2000 which as per the impugned
judgment is still pending. The learned counsel has submitted that the
probate granted in Probate Case No. 141 of 1993 was revoked vide
order dated 10.08.1999 and the order of revocation was brought on
record at the first appellate stage but no opportunity was granted to the
appellant to rebut the said additional evidence. The learned counsel
has further submitted that the appellate court has set aside the decree
by referring to the fact that the probate granted in Probate Case No.
141 of 1993 was revoked vide order dated 10.08.1999. The learned
counsel has submitted that in absence of grant of any opportunity of
rebuttal by the plaintiff who was the respondent in the first appellate
court, the 2nd substantial question of law is fit to be answered in favour
of the appellant.
5. He has also submitted that the decree could still be sustained by
considering the fact that as to whether the undivided portion of joint
family property could be transferred in favour of the plaintiff by the
defendant could have been considered upon remand as the same
would require evidence but such exercise has not been undertaken by
the learned First Appellate Court and therefore the 3rd substantial
question of law is also fit to be answered in favour of the appellant.
6. The learned counsel has further submitted that the decree
having been satisfied prior to filing of the appeal, the consequence of
setting aside of the decree passed by the Trial Court is that the plaintiff
has been deprived of the entire consideration amount with respect to
the suit property and has also incurred expenses in execution of the
sale deed through the process of the court and after the passing of the
property in favour of the plaintiff, upon satisfaction of decree the First
Appellate Court has set aside the decree and consequently the Title of
the plaintiff acquired by execution of the decree is in cloud.
7. He submits that the plaintiff has lost the consideration amount
and also incurred expenses and has not got a clear title by virtue of the
judgment passed by the learned First Appellate Court. He submits that
once the decree is satisfied by virtue of its execution in Specific
Performance of Contract the same cannot be reversed by the First
Appellate Court and therefore the first substantial question of law is
also fit to be answered in favour of the appellant.
8. The learned counsel has also submitted that such relief could
not have been granted by the First Appellate Court in absence of
making a prayer to nullify the sale deed already executed through the
executing court. He has submitted that he shall assist this court further
by referring to judgments which he may be permitted to cite and for
that purpose he seeks short adjournment.
9. The learned counsel appearing on behalf of the respondent
defendant has submitted that he shall also examine the issues involved
and advance his arguments on the next date.
10. Post this case on 02.04.2025 for further hearing to be taken up
at 10:30 A.M.
(Anubha Rawat Choudhary, J.)
Binit
