Smt. Mehaboobi vs Sri. Rehaman Shariff
2022 Latest Caselaw 5056 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 21ST DAY OF MARCH 2022

                            BEFORE

     THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

       WRIT PETITION No.16791 OF 2017   (GM-CPC)

BETWEEN:

1.     Smt. Mehaboobi
       Since deceased
       represented by her LRs

       1(a) Smt. Sameena Taj,
            W/o. Syed Raheem,
            Aged about 62 years.

       1(b) Sri. Syed Inayath,
            S/o. S.M.Syed Hyder,
            Aged about 58 years.

       1(c) Smt. Shaw Navaz Begum
            W/o Syed Yakub,
            Aged about 57 years.

       1(d) Sri. Syed Asif,
            S/o. S.M.Syed Hyder,
            Aged about 55 years.

       1(e) Smt. Zareena Taj,
            W/o Firoz Ali Khan,
            Aged about 53 years.

       1(f) Smt. Zabeena Taj,
            D/o S.M.Syed Hyder,
            Aged about 47 years.
                                                 WP.No.16791/2017
                                 2


       1(g) Sri. Syed Habid,
           S/o S.M.Syed Hyder,
          Aged about 45 years.

          Petitioner Nos.1(a) to 1(g) all
          Residing at No.2710/1,
          New No.M-22, M.K.D.K.Road,
          3rd Cross, Mandi Mohalla,
          Mysore-570 021.                       .. Petitioners

 ( By Sri Nanjunda Swamy N., Advocate)

AND:

Sri. Rehaman Shariff,
S/o Late Mohammed Haneef,
Aged about 60 years,
R/at No.2618/1, MKDK Road,
Mandi Mohalla,
Mysore-570 021.                              ...Respondent

 (By Sri Abubacker Shafi, Advocate)

      This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to pass necessary orders and issue
of writ of certiorari or other appropriate writ or direction to set
aside/quash the order dated 1.2.2017 passed on I.A.No.3, filed
under Section 47, Order 21 Rule 98 and 101 and Section 151 of
CPC, read with Section 28 of Specific Relief Act in
Ex.No.59/2010, by the Principal Senior Civil Judge and CJM,
Mysuru, as per Annexure-L and dismiss the said applications
(I.A.No3), produced at Annexure-J and pass other suitable
orders under the circumstances of the case as it deems fit by this
Hon'ble Court by allowing this petition with costs, in the interest
of justice and equity.

      This Writ Petition coming on for Preliminary Hearing in `B'
Group through Physical Hearing/Video Conferencing Hearing, this
day, the Court made the following:
                                                   WP.No.16791/2017
                                 3


                           ORDER

The present petitioner, since deceased, represented by

her legal representatives, is the decree holder in

O.S.No.228/1994, in the Court of Prl.Civil Judge (Sr.Dn.),

Mysuru, (hereinafter for brevity referred to as `trial Court')

in a suit for specific performance of the contract. The suit

came to be decreed holding that the plaintiff was entitled

for the relief of specific performance of the contract. The

defendant was directed to execute the registered Sale Deed

in respect of the suit schedule property by receiving the

balance sale consideration amount from the plaintiff within

two months from the date of the judgment, failing which,

the plaintiff was at liberty to get the Sale Deed from the

Court by depositing the balance sale consideration amount.

2. The decree holder filed Execution Petition in

Execution No.59/2010, before the learned Prl.Senior Civil

Judge & CJM, Mysuru, (hereinafter for brevity referred to as

`Executing Court'). In the said Execution Petition, the

judgment debtor filed IA.No.III under Section 47 Order XXI WP.No.16791/2017

Rule 101 of Code of Civil Procedure, 1908 (hereinafter for

brevity referred to as `CPC'), read with Section 28 of the

Specific Relief Act, 1963, seeking an order to rescind the

contract of sale, directing the decree holder to receive the

balance sale consideration and to deliver the vacant

possession of the suit schedule property. The said IA.No.III

came to be allowed by the order of the Executing Court on

01.02.2017. The judgment debtor was directed to pay the

advance amount with interest at the rate of 9% p.a. from

the date of payment till realisation. Aggrieved by the same,

the present petitioners, who are the legal representatives of

the original decree holder have filed the present writ

petition.

3. Learned counsel for the petitioners in his argument

submitted that the balance amount was only `51,435/- as

per the judgment and the same has been deposited in the

bank by obtaining the Receipt Order by the Court, by the

decree holder on 17.03.2016. Thus, since the balance

amount has been deposited, the Executing Court ought not WP.No.16791/2017

to have allowed IA.No.III filed by the judgment debtor and

rescinded the contract. He further submitted that the

Executing Court issuing Receipt Order enabling the decree

holder to deposit the balance sale consideration itself shows

that the alleged delay caused in depositing the balance

amount is not a serious matter.

4. Learned counsel for the respondent in his argument

submitted that the payment of the balance amount by the

decree holder to the judgment debtor should have been

within two months from the date of the decree, which was

on 28.02.2002. However, the petitioner as a decree holder

claims to have deposited the alleged balance amount

fourteen years after the date of the judgment, for which

delayed deposit, they have not even taken any extension of

time by the trial Court. He further submits that even to

hold that the alleged balance amount of `51,435/- was

deposited by them on 17.03.2016 also, they have not

produced any document in the form of Court order or Court

acknowledgment, acknowledging the alleged deposit of the WP.No.16791/2017

balance amount. With this, he submits that the impugned

order does not warrant any interference in it.

5. Undisputedly, the total sale consideration agreed to

between the parties was for a sum of `86,250/-. The

alleged advance amount shown to have been received by

the vendor/defendant was a sum of `16,250/-. As such,

basically the dispute between the parties was with respect

to the alleged balance amount. According to the defendant,

the alleged balance amount was a sum of `70,000/-.

However, the plaintiff contended that they have paid

another sum of `18,565/- on 10.08.1993, thus, reducing

the total balance due to a sum of `51,435/- only.

With respect to the alleged further payment of a sum of

`18,565/-, the trial Court framed Issue No.5 and answered

it in favour of the plaintiff holding that the plaintiff has

proved that a further balance amount of `18,565/- was paid

by him to the defendant. The said finding in the Original

Suit since has not been challenged, the same has reached

finality and shows that, as on the date of the decree, the WP.No.16791/2017

balance amount payable by the decree holder to the

judgment debtor (vendors) was only a sum of `51,435/-.

It was the said amount that was required to be received by

the judgment debtor from the decree holder within two

months from the date of the judgment.

Even according to the petitioner, the said balance

amount of `51,435/- was deposited on 17.03.2016 i.e.,

fourteen years after the judgment and decree. Even to

show that the said balance amount of `51,435/- has been

deposited, the petitioner has only produced a certified copy

of the order sheet where the Executing Court has directed

its office to issue Receipt Order (RO) to enable the decree

holder to deposit the amount of `51,435/-. The office is

shown to have issued the said Receipt Order on

17.03.2016, which can be seen in an endorsement made by

the office in the proceedings sheet in Execution Petition.

However, there are no other judicial observations to the

effect that the said amount of `51,435/- has been deposited

by the decree holder in the matter. No doubt, the writ WP.No.16791/2017

petitioners by carrying out amendment to the original writ

petition have stated that they have deposited the said

amount on 17.03.2016 and have produced a certified copy

of the Receipt Order, which shows that a sum of `51,435/-

is shown to have been deposited in the State Bank of

Mysuru, Government Business Branch, Mysuru. The date

stamp does not clearly shows the day of the deposit,

however, the month and year appears to be March 2016.

Assuming for a moment that such an amount of `51,435/-

was deposited by the decree holder, but, the same would be

not before the date 17.03.2016.

6. Learned counsel for the petitioners stating that the

Executing Court by permitting him to deposit the said

amount, has enabled him to deposit the balance amount, as

such, it ought not to have allowed the application filed by

the judgment debtor under Section 28 of the Specific Relief

Act, relied upon an order passed by a Co-ordinate Bench of

this Court Smt.Y.M.Shailaja -vs- C.Ramanjaneya, reported WP.No.16791/2017

in 2010 SCC Online Kar 302, which would be refereed to at

an appropriate stage hereafterwards.

7. The operative portion of the judgment in

O.S.No.228/1994 is as below :

" Suit filed by the Plaintiff is decreed as under;

Plaintiff is entitled to the relief of Specific performance of the contract as sought for in this suit with costs;

Defendant is directed to execute the registered Sale-deed in respect of the suit schedule property by receiving the balance sale consideration amount from the Plaintiff within Two months from the date of this order, failing which the Plaintiff is at liberty to get the Sale deed from the Court by depositing the balance Sale consideration amount."

Section 28 of the Specific Relief Act, 1963, reads as

below :

" 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 WP.No.16791/2017

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.

(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 lessee as earnest money or deposit in connection with the contract.

                                                  WP.No.16791/2017



          (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.

(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."

In the instant case, the Execution Petition was filed in

the year 2010, however, even according to the decree

holder/petitioners, the balance amount of `51,435/- was

deposited nearly six years after the institution of the WP.No.16791/2017

Execution Petition and fourteen years after the date of

judgment and decree passed in O.S.No.228/1994.

8. In Y.M.Shailaja's case (supra), the balance sale

consideration ought to have been paid or deposited within

the date 24.05.2007, but the Receipt Order for depositing

the said balance sale consideration was issued on

28.05.2007. Thus, there was three days delay in depositing

the balance sale consideration. It is considering said fact

that the alleged delay is only three days and that

immediately after the decree, the decree holder had

instituted a Execution Petition and obtained a Receipt Order,

the Co-ordinate Bench in Y.M.Shailaja's case (supra),

arrived at an opinion that the application is filed by the

judgment debtor belatedly under Section 28(1) of the

Specific Relief Act, as such, the application has been rightly

rejected by the Executing Court.

Whereas, in the case on hand, admittedly the date of

judgment and decree is 28.02.2002. The date of issuance

of Receipt Order is on 17.03.2016. Thus, fourteen years WP.No.16791/2017

delay had already been crept in before obtaining the Receipt

Order. However, the Execution Petition was filed in the

year 2010 itself. Even for six years after filing the

Execution Petition also, the decree holder did not shown any

interest to deposit the balance amount and to ask the

judgment debtor to execute the Sale Deed in his favour.

Though the learned counsel for the petitioners contended

that there were few more transactions between the parties

and some more agreements were entered into between

them and that in a Panchayath, there was some

understanding between the parties, as such, there was

delay and a suit also came to be filed between the parties in

that regard, but, all of them purely being a question of fact

which does not find place in any of the documents of the

Execution Petition which are placed before this Court, I do

not want to look into those other disputed aspects which are

for the first time being introduced by the learned counsel for

the petitioners in his argument. However, suffice it to say

that, even though any such valid reason was there to the WP.No.16791/2017

plaintiff or to the legal representatives of the deceased

original plaintiff, nothing had prevented them from

approaching the competent Court and getting the extension

of time stipulated for execution of the Sale Deed.

Admittedly, no attempt has been made in that regard.

Thus, for fourteen years after the judgment and decree,

the decree holder (later, legal representatives) slept on the

decree. Even after instituting the Execution Petition also,

for six years, they did not chose to deposit the balance

amount. However, the judgment debtor came up with an

application i.e., IA.No.III filed under Section 47 Order XXI

Rule 101 of CPC read with Section 28 of the Specific Relief

Act, 1963, which came to be allowed under the impugned

order.

9. In the present circumstances of the case, the

reasoning given in Y.M.Shailaja's case (supra), cannot be

applied to since the facts, more particularly, the inordinate

delay of fourteen years on the part of the decree holder

himself, keeps the present case on a different footing from WP.No.16791/2017

the one in Y.M.Shailaja's case (supra). Thus, suffice it to

say that, the decree holder merely because he was having

the decree in his favour, since has slept on his rights to get

the Sale Deed executed for about fourteen years and did

not even made any attempt to get the time stipulated for

execution of the Sale Deed extended by the competent

Court, I am of the view that the Executing Court has

allowed IA.No.III by attributing cogent reasons which does

not warrant any interference in it.

Accordingly, the Writ Petition stands dismissed as

devoid of merits.

Sd/-

JUDGE

bk/