Karnataka High Court
Rudragouda S/O. Veerangowda ... vs Sri Siddallingaiah Shivaputrayya ... on 6 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 104233 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.104233 OF 2023 (GM-CPC)
BETWEEN:
RUDRAGOWDA
S/O. VEERANGOWDA CHENNPPAGOWDAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. NIDAGUNDI, TQ: RON, DIST: GADAG-582114.
...PETITIONER
(BY SRI. J.S. SHETTY, ADVOCATE)
AND:
1. SRI. SIDDALLINGAIAH SHIVAPUTRAIYYA HIREMATH,
AGE: 64 YEARS, OCC: AGRICULTURIST,
R/O. NIDAGUNDI, TQ: RON, DIST: GADAG-582114.
2. SIDDANAGOWDA
S/O. VEERANGOWDA CHANNPPAGOWDAR,
AGE: 56 YEARS, OCC: AGRICULTURIST,
YASHAVANT
NARAYANKAR R/O. NIDAGUNDI, TQ: RON, DIST: GADAG-582114
Digitally
signed by 3. SUVARNA W/O. R.H.M. SHANTAMURTHY,
YASHAVANT
NARAYANKAR AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O. SHIRAGUPPA, TQ: SHIRAGUPPA,
DIST: BALLARI-583121.
4. MRUTYUNJAYA S/O. PRABHAKAR VASTRAD,
AGE: 47 YEARS, OCC: ADVOCATE,
R/O. VEERBHADRESHWARA NILAYA,
SHRINAGAR, DHARWAD-58003.
...RESPONDENTS
(BY SRI. C.S. SHETTAR &
SMT. KAVYA C. SHETTAR, ADVOCATES FOR R1;
R2 TO R4-NOTICE DISPENSED WITH)
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WP No. 104233 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUES A WRIT OF
CERTIORARI TO QUASH THE ORDER DATED 04.8.2022 PASSED IN
EXECUTION NO.05/2016 AND THE ORDER DATED 7.9.2022 PASSED
IN EXECUTION NO.5/2016 PASSED BY THE SENIOR CIVIL JUDGE
AND JMFC, RON, THE COPY OF THE ORDER SHEET OF WHICH HAS
BEEN PRODUCED HEREWITH AND MARKED AS ANNEXURE-A; THE
SALE DEED SAID TO HAVE BEEN EXECUTED BY THE COURT
COMMISSIONER AS PER THE ORDER DATED 7-1-2019 PASSED IN
EXECUTION NO.5/2016 ON THE FILE OF SENIOR CIVIL JUDGE, RON
AND THE REGISTERED BEFORE THE SUB REGISTRAR, GAJENDRAGA
IN GJD-1-03004-2021-22 IN CD NO. GJDD718 DATED 25.11.2021
THE COPY OF WHICH HAS BEEN PRODUCED AT ANNEXURE-G, MAY
KINDLY BE HELD AS NULL AND VOID, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 30.01.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking the
following reliefs:
a) a) Issues a writ of certiorari to quash the order dated
04.8.2022 passed in Execution No. 05/2016 and
the order dated 7.9.2022 passed in Execution No.
5/2016 passed by the Senior Civil Judge and JMFC,
Ron, the copy of the order sheet of which has been
produced herewith and marked as Annexure-A.
b) The sale deed said to have been executed by the
court commissioner as per the order dated 7-1-
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2019 passed in execution No. 5/2016 on the file of
Senior Civil Judge, Ron and the registered before
the sub registrar, Gajendraga in GJD-1-03004-
2021-22 in CD No. GJDD718 dated 25.11.2021 the
copy of which has been produced at Annexure-G,
may kindly held as null and void.
c) Any other writ which this Hon'ble court deems fit
to grant in the facts and circumstances of the case
may kindly be granted in favour of the petitioner
herein by allowing this writ petition with the cost
through out in the ends of justice and equity.
d)
2. The 1st respondent filed a suit in O.S.No.15/2004 on
the file of learned Senior Civil Judge and JMFC, Ron
for specific performance of agreement 01.07.1996
which came to be decreed on 30.11.2010. The
operative portion of the judgment reads as under;
"Suit of the plaintiff is hereby decreed with
costs.
The defendants are directed to execute regular
registered sale deed in respect of suit land in
favour of plaintiff and at the cost of the
plaintiff after receiving the remaining sale
consideration amount within three months
from the date of this Order.
If the defendants failed to execute the sale
deed within stipulated time the plaintiff is at
liberty to apply for executing the same
through Court on behalf of defendant in favour
of plaintiff in respect of suit land.
Draw decree accordingly."
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3. The respondent filed E.P.No.5/2016 on 20.01.2016 for
execution of the aforesaid decree. In the execution
petition, an application U/o XXI Rule 11 of CPC having
been filed vide impugned order dated 04.08.2022, the
execution court rejected the contention of the J.Dr
that the execution petition was to be filed within three
months and vide order dated 07.09.2022 closed the
said execution proceedings, accepting the report of
the Court Commissioner that decree was fully satisfied
due to execution of a sale deed in favour of D.Hr. It is
aggrieved by the same the petitioner is before this
Court. The petitioner has also sought for declaration
of sale deed dated 25.11.2021 as null and void.
4. Sri J.S.Shetty, learned counsel for the petitioner
would submit that in terms of the decree sought to be
executed, the sale deed in respect of the suit land was
to be executed after receiving the remaining sale
consideration amount within three months from the
date of judgment. No attempt being made by the D.Hr
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to make payment of the consideration within three
months of the said judgment dated 03.11.2010. The
execution petition being filed on 20.01.2016 and the
amount deposited only on 04.02.2019 after period of
merely 9 years from the date of the judgment and
decree and obviously not within a period of three
months, the D.Hr had lost his right to enforce the
decree. More so, since post expiry of 3 months from
the date of judgment and decree, there was no
obligation on the part of the J.Dr to execute a sale
deed in favour of D.Hr. In this regard, he relies upon
the decision of Hon'ble Apex Court in the Case of P.
Shyamala Vs Gundlur Masthan in Civil Appeal
Nos.1363-1364/2023 dated 24.02.2023 more
particularly para No.8 thereof, which is reproduced as
under;
"8. Applying the law laid down by this Court in the
aforesaid decision to the facts of the case on hand
and considering Section 28 of the Specific Relief
Act, we are of the opinion that the trial Court
erred in exercising the discretion in favour of the
plaintiff and erred in extending the time in favour
of the plaintiff to deposit the balance sale
consideration of Rs.15,00,000/- by condoning the
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huge delay of 853 days, which as observed
hereinabove has not been explained sufficiently at
all. As observed hereinabove, after the plaintiff
was directed to deposit the balance sale
consideration of Rs.15,00,000/within a period of
two weeks from the date of ex-parte judgment
and 6 decree dated 12.10.2013, which the
plaintiff failed to deposit/pay, even no application
for extension of time under Section 148 CPC and
Section 28 of the Specific Relief Act was made
thereafter within a reasonable time and was made
after a period of 853 days. Nothing is on record
that in between any notice was given to the
defendant to execute the sale deed as per the
judgment and decree on deposit of the balance
sale consideration. The application filed by the
plaintiff under Section 148 CPC and Section 28 of
the Specific Relief Act seeking extension of time
to deposit the balance sale consideration was
hopelessly delayed. As observed hereinabove,
Section 28 of the Specific Relief Act seeks to
provide complete relief to both the parties in
terms of a decree of specific performance.
Therefore, the trial Court failed to exercise the
discretion judiciously in favour of the defendant
and erred in exercising the discretionary power in
favour of the plaintiff, that too with a delay of 853
days. The High Court has erred in confirming the
same and dismissing the revision applications.
Under the circumstances, the order passed by the
trial Court allowing the application of the plaintiff
being I.A.No. 732/2016 seeking extension of time
to deposit the balance sale consideration deserves
to be dismissed and I.A. No.914/2017 filed by the
defendant-appellant under Section 28 of the
Specific Relief Act to rescind the agreement to sell
dated 9.5.2012 deserves to be allowed.
However, at the same time, to strike the balance
between the parties the amount of Rs.8,00,000/-
paid by the plaintiff as an advance is to be
returned to the plaintiff with 12% interest per
annum from 9.5.2012 till the actual payment,
within a period of six weeks from today, failing
which it shall carry interest @ 18% per annum."
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On the basis of the above he submits that the relief
sought for requires to be granted.
5. Sri. C.S.Shettar, learned counsel for D.Hr would
submit that any execution proceedings can be filed
within a period of 12 years from the date on which the
decree was passed. The decree in the present matter
having been passed on 30.11.2010, Execution Petition
having been filed on 20.01.2016 was within a period
of 12 years, the deposit of amount was also made
within the said period of 12 years and in terms of
Article 136 of The Limitation Act the same being in
time, the J.Dr cannot escape liability for execution of
a sale deed. The Trial Court has rightly considered
these aspects and allowed the application filed under
Order XXI Rule 11 of CPC, appointed the
Commissioner who has executed a sale deed. The sale
deed having been registered, the same ought not to
be interfered with at this stage.
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6. Insofar as decision in P.Shyamala's case (supra) he
submits that in the said judgment that wording of the
judgment of the Trial Court is different from the
wordings in the present case. The said wording is
reproduced hereunder for easy reference.
"Judgment pronounced (VSJ), In the result the
suit is decreed with costs. The plaintiff is granted
a decree for specific performance of agreement of
sale directing the defendant to execute the
registered sale deed in respect of the schedule
property in pursuance of Ex.A1 agreement of sale
on receiving the balance of consideration of Rs.15
lakhs. The plaintiff is directed to deposit the
balance of sale consideration within two weeks
before this Court. In the case defendant fails to
execute the agreement of sale on receiving the
balance of sale consideration, the plaintiff is at
liberty to get it done through process of Law. The
plaintiff is also granted perpetual injunction
restraining the defendant, her agents,
representatives ect., from transferring, alienating
or creating any 3rd party interest over the plaint
schedule property in favor of 3rd parties."
7. By referring to the above, he submits that the plaintiff
therein was directed to deposit balance sale
consideration within two weeks before the Court and
in the event of the defendant failing to execute the
agreement of sale on receiving the balance of sale
consideration, the plaintiff was at liberty to get it done
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through process of Law. Thus, he submits that in that
case there was a specific direction that the deposit
was to be made within two weeks and it is on account
of such deposit not having been made within the said
time period and extension of time being sought for,
the Hon'ble Apex Court set-aside the order extending
the time for payment. In the present case, there is no
such time limit which has been prescribed in the
judgment and decree and as such, the D.Hr could
execute the decree passed in his favour within a
period of 12 years as provided under Article 136 of
the Limitation Act. On these grounds, he submits that
the writ petition is requires to be dismissed.
8. Heard Sri. J.S.Shetty, learned counsel for the
petitioner and Sri. C.S.Shettar, learned counsel
appearing for respondent and perused the papers.
9. The points that would arises for determination are:
i. Whether in a execution petition filed to execute
an decree for specific performance, the D.Hr can
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file an execution petition at any time within 12
years from the date of decree?
ii. Whether in the present case, the execution
petition has been filed in time?
iii. What order?
10. I answer the above points are as under:
11. Points No.1 and 2 being related are answered
together.
12. Answer to the Point No.1:- Whether in an
execution petition filed to execute a decree for
specific performance, the D.Hr can file an
execution petition at any time within 12 years
from the date of decree?
13. Answer to the Point No.2:- Whether in the
present case, the execution petition could have
been filed without payment or deposit of
remaining consideration within 3 months from
the date of the decree?
13.1. From the aforesaid narration of the facts it is
clear that the decree was passed on
30.11.2010, execution petition was filed on
20.01.2016 and the amount was deposited on
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04.02.2019. The operative portion of the
judgment is reproduced hereinabove.
13.2. A perusal of this operative portion would
indicate that the judgement-debtors were
directed to execute regular registered sale deed
in respect of suit land in favour of the decree-
holder and at the cost of the decree-holder,
after receiving the remaining sale consideration
amount within three months from the date of
the order and in the event of judgement-debtor
failing to execute the sale deed within the
stipulated time the decree-holder was at liberty
to apply for executing the same through Court
on behalf of judgement-debtor in favour of
decree-holder in respect of suit land.
13.3. A reading of the above would indicate that sale
deed has to be executed at the cost of the
decree-holder after receiving the remaining sale
consideration amount within three months.
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Thus, the execution of sale deed is to be made
after receiving the remaining sale consideration
and the time period fixed for that is three
months. The decree-holder cannot now raise a
highly technical contention that there is no
particular time limit fixed for making payment.
When the sale deed was to be executed within
three months, it presupposes that the payment
was to be made or deposited within the said
period of three months.
13.4. The reason for fixation of such time is not too
far to see in as much as the suit is one for
specific performance of contract, the prices of
the property varying from time to time and in
almost all the cases the prices of land only
increasing, there was an obligation imposed on
the purchaser/ decree-holder to make payment
of the due amount at the earliest in this case
within three months so as to enable the
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judgement-debtor/vendor to execute a sale
deed. The obligation of the parties being
reciprocal in nature, the order of performance
becomes material, in as much as without the
decree-holder making payment of or depositing
the remaining sale consideration and without
the decree-holder bearing the cost of such
registration, there would be no obligation on the
part of the judgement debtor to execute a sale
deed. The period of limitation to bring about a
suit for specific performance being three years,
the time for execution of a decree cannot stand
extended by a period of twelve years without
the decree holder performing his obligation.
13.5. I am unable to accept the submission of
Sri. C.S.Shettar, learned counsel for respondent
No.1 that it was for the judgement debtor to
execute a sale deed within three months and
since the same has not done the plaintiff has 12
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years time to file execution petition. The
obligation is always on the decree-holder to
enforce his right at the earliest. The obligation
imposed under the decree was for payment of
amount within three months and bear the cost
of registration which apparently the decree-
holder has not done within the time stipulated.
In fact, there is no deposit made by the decree-
holder of the balance sale consideration even at
the time of filing of the execution petition on
20.01.2016, the said amount was only
deposited on 04.02.2019 a little over 3 years
after filing of the execution petition.
13.6. In that view of the matter, I am of the
considered opinion that whenever a time limit is
prescribed in a decree and decree-holder is
required to do or not to do certain things within
that time frame, then it would be for the
decree-holder to comply the same and in
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absence of such compliance, the decree would
be become un-enforceable.
13.7. It is only after the plaintiff had complied with
the directions in the decree that the limitation
period under Section 136 of the Limitation Act
could be considered from the date of decree.
Especially, in a suit for specific performance as
afore observed, the prices of the property
always being on increase, the decree-holder in
the present case has waited for merely six
years to file the Execution Petition and none
years to deposit the balance sale consideration
when the direction was for payment to be made
within three months form the date of the order.
This aspect is further re-enforced for 2nd part of
the order when the Trial Court has categorically
stated that in the event of defendant failing to
execute the sale deed within the stipulated
time, the plaintiff is at liberty to apply for
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executing the same through Court. Second
portion of the order does not relate to payment.
Thus, there is a pre-supposition that the
payment has been made and the sale deed has
not been executed. Thus, it is clear that there is
a complete violation of the order of the Trial
Court by the decree-holder and the amount not
having paid within due time no execution of the
spent decree could be made.
13.8. It is only on the performance of the obligation
of the decree-holder that the decree-holder can
seek for execution when the time period would
be calculated from the date of the decree. In
the present case as analyzed above, the decree
passed on 30.11.2010 was sought to be
enforced by execution on 20.01.2016 and the
deposit was made on 04.02.2019 and not within
the period of three months as directed in the
decree. The decree-holder not having complied
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with the terms of decree cannot seek for
execution of the same.
13.9. Whether time was essence of agreement or not,
time becomes essence of payment for execution
of the decree on account of the requirement
under the decree to make payment within three
month of the decree.
13.10. Hence, I answer point No.1 by holding that
when a decree is passed directing the decree-
holder to do or not to do a particular thing
within a particular time and if the decree-holder
was not to do the thing directed or do a thing
which is restricted within that time, then the
decree-holder would lose his right to seek for
execution of the decree.
13.11. Answer Point No.2 by holding that in the
present case, the execution petition could not
have been filed without payment or deposit of
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remaining consideration within three months
from the date of the decree, the decree became
unenforceable due to the default committed by
the decree holder.
14. Answer to point No.3: In view of my answer to
points 1 and 2 above, I pass the following:
ORDER
i) Writ petition is allowed.
ii) The orders dated 04.08.2022 and
07.09.2022 passed in E.P.No.5/2016 by the
learned Senior Civil Judge and JMFC, Ron
are hereby quashed. Consequently, the
order dated 07.01.2019 passed in
E.P.No.5/2016 and the registered sale deed
bearing No.3004 vide Annexure-G are
hereby quashed. The Execution Petition
No.5/2016 stands dismissed.
Sd/-
JUDGE
AM
