Karnataka High Court
Sri M G Maligachari vs Smt Sharadamma on 29 January, 2025
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WP No. 55692 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.55692 OF 2017 (GM-CPC)
BETWEEN:
1. SRI. M.G.MALIGACHARI,
S/O. LATE GURAPPACHARI,
AGED ABOUT 65 YEARS,
(SENIOR CITIZEN NOT CLAIMED)
2. SMT. J.S.SHANTHAMMA
W/O M.G.MALIGACHARI,
AGED ABOUT 60 YEARS,
BOTH ARE RESIDING AT
NO.2057, 8TH MAIN, E" BLOCK,
RAJAJI NAGAR, 2ND STAGE,
BENGALURU - 560 010.
...PETITIONERS
(BY SRI. BHADRINATH R., ADVOCATE)
Digitally signed
by MEGHA AND:
MOHAN
Location: HIGH SMT. SHARADAMMA
COURT OF W/O T.M.MALIGACHARI,
KARNATAKA
SINCE DECEASED
REPRESENTED BY HER
LEGAL REPRESENTATIVES,
1. SRI. T. M. MALIGACHARI,
FATHER'S NAME NOT KNOWN
AGED ABOUT 76 YEARS,
2. SRI. RAJASHEKARACHARI
S/O T.M.MALIGACHARI,
AGED ABOUT 46 YEARS,
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WP No. 55692 of 2017
3. SMT. CHANDRAMMA
D/O T.M.MALIGACHARI,
AGED ABOUT 44 YEARS,
THE RESPONDENT NO.1 TO 3 ARE
RESIDENT OF NARASANDRA VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 560 089.
...RESPONDENTS
(BY SRI PADMANABHA MAHALE, SENIOR COUNSEL A/W
SRI M.SHIVAPRAKASH, ADVOCATE FOR R1 AND R2;
R3 SERVED AND UNREPRESENTED)
THIS W.P. IS FIELD UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THEREBY QUASHING
THE ORDER DATED 23.08.2017 PASSED BY THE I ADDITIONAL CIVIL
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN EXECUTION
PETITION NO.10/2006 ON THE INTERLOCUTORY APPLICATION FILED
BY THE PETITIONERS UNDER SECTION 28 OF THE SPECIFIC RELIEF
ACT [IA-1] AS FOUND AT ANNEXURE-J AND ETC.,
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order passed in Execution Petition
No.10/2006 dated 23.08.2017, the judgment debtor is before
the Court.
2. The respondent herein has filed the suit for specific
performance of an agreement of sale dated 02.05.1989, which
came to be decreed. On 30.11.1998, against that, the
defendants preferred RA.No.24/1999, which came to be
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dismissed on 13.07.2005. Thereafter, the decree holder had
filed Execution Petition No.10/2006 on 20.03.2006. On
24.11.2014 the judgment debtor has filed an application under
Section 28 of the Specific Relief Act seeking rescission of
contract and that came to be dismissed by order dated
23.08.2017. While dismissing the application, the Court has
observed that it is the case of the judgment debtor that though
Execution Petition is filed, an amount of Rs.5,000/- is yet to be
paid by the decree holder, in that case, he is not entitled for
specific performance of the contract.
3. It is the case of the decree holder that in the decree
that is passed, there is no mention about the time frame as to
when the amount has to be paid. As such, Section 28 of the
Specific Relief Act does not come to the rescue of the decree
holder. The Court dismissed the application and observed that
when the decree is silent as to the deposit of balance sale
consideration amount as it is well settled principle that the
Executing Court cannot go beyond the decree. As such,
question of entertaining the application filed under Section 28
of the Specific Relief Act does not arise. Even though, the
decree holder has filed the execution petition in the year 2006,
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till 2014 the judgment debtor has kept quiet and in the year
2014, he filed I.A., to rescind the contract. The said aspect
goes to show that the judgment debtor with an intention to
drag the proceedings filed the present application and there are
no reasons assigned by the judgment debtor to allow I.A.No.1.
4. Learned counsel appearing for the judgment debtor
submits that he has denied the fact that the agreement is
executed, the suit is decreed and appeal is dismissed and even
after dismissal of the appeal on 13.07.2005, in the year 2006
execution petition is filed, but the decree holder has not paid
the remaining amount of Rs.5,000/- and he has filed petition
for rescission of the contract. It is stated that at any point of
time even till now neither they have paid the amount nor an
application is filed seeking extension of time. When they have
not done either of the two, they are not entitled and that they
cannot seek the relief of specific performance and the Court
ought to have rescinded the contract.
5. The learned counsel had relied on the judgment of
the Hon'ble Apex Court in the case of T.L.Rajagopal Vs.
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S.N.Shivakumar reported in 2014 SCC Online KAR 10072,
wherein at paragraph Nos.13, 17, 23 and 25 observed as
under:
"13. Therefore, to invoke the above provision,
the person who has obtained a decree for
specific performance ought to have failed to
pay the money or other sum which the Court
has ordered him to pay, within the period
allowed by the decree or such further period as
the Court may allow. In such an event the
person who has suffered the decree has a right
to apply to the Court in the same suit in which
the decree was passed to have the contract
rescinded. On such an application being made,
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. Once such an order for rescission of
contract is made, the Court shall direct the
purchaser or the lessee, if, he has obtained the
possession of the property under the contract,
to restore such possession to the vendor or
lessor and also may direct payment to the
vendor or lessor to pay the rents and profits
which have accrued in respect of the property
from the date on which the possession was
obtained by the purchaser or lessee until
restoration of possession to any vendor or
lessor, and if the justice of the case so requires,
the refund of any sum paid by the vendee or
lessee or earnest money or deposit in
connection with the contract.
17. In the light of the ratio laid down in the
aforementioned judgments, the law on the
point can be said to be fairly settled: A decree
for specific performance being in the nature of
a preliminary decree, the Court after passing of
the said decree does not become functus
officio. It retains the jurisdiction to conclude
the further steps to be taken in the suit. The
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decree holder chooses to file an execution
petition for getting the sale deed registered
through the Court when the defendant who
suffered the decree fails to obey the same.
Though called 'execution proceedings', it is
nothing but continuation of the original suit. In
a suit for partition, after the preliminary decree
is passed, to give effect to the preliminary
decree, it is necessary to initiate final decree
proceedings. But in a suit for specific
performance it is called as 'execution
proceedings'. Thus when the Court that passed
the decree for specific performance and the
Court executing the said decree are one and the
same, Section 28 of the Act gives equal
opportunity to the parties to the suit. If the
plaintiff/decree holder for any reason is unable
to deposit the balance sale consideration, he is
given a right to apply to the Court that passed
the decree seeking extension of time to deposit
the money and the Court is vested with the
power to grant such extension. At the same
time when the plaintiff commits default in
making payment, a right is conferred upon the
defendant/judgment debtor to approach the
Court under Section 28 of the Act seeking
rescission of the contract. Here again the Court
has the discretion to rescind the contract
notwithstanding the fact that the decree has
attained finality.
23. If the defendant was at fault, he was not
willing to obey the decree, if the plaintiff had
deposited the money after the expiry of the
appeal period as stipulated in the decree or at
least on the day he filed the execution petition,
that would have been sufficient to demonstrate
his bona fides. The balance sale consideration
of Rs.2,85,000/- had to be deposited on the
date of the suit or the date of the decree or at
least on the date of filing of the execution
petition. But the plaintiff/decree holder
appears to have woken up after seeing the
averments in I.A. under Section 28 of the Act
and made up his mind to deposit the money on
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14.07.2011 which is nearly 8 years after the
passing of the decree and 14 years from the
date of the agreement.
25. Where a contract is rescinded under sub-
Section (1) of Section 28 of the Act, if the
justice of the case so requires, the Court can as
provided under Section 28 (2)(b) of the Act
order for refund of any sum paid by the vendee
or lessee as earnest money or deposit in
connection with the contract. Similarly Section
65 of the Contract Act, 1872 also casts an
obligation on the person who has received an
advantage under void agreement or contract
that becomes void, to restore it or make
compensation for it, to the person from whom
he received it. Therefore the
defendant/judgment debtor shall refund the
advantage/earnest money received from the
plaintiff/decree holder under the agreement
i.e., a sum for Rs.1,75,000/- together with
interest @ 18% p.a. from the date of receipt of
amount till the date of payment, if he wants the
rescission of the contract."
He relied on the judgment of Prem Jeevan Vs.
K.S.Venkata Raman and Another reported in (2017) 11
SCC 57, wherein at paragraph Nos.8 and 9 observed as under:
"8. Reference to Order 20 Rule 12-A CPC shows
that in every decree of specific performance of a
contract, the court has to specify the period
within which the payment has to be made. In
the present case, the said period was two
months from the date of the decree.
9. In absence of the said time being extended,
the decree-holder could execute the decree only
by making the payment of the decretal amount
to the judgment-debtor or making the deposit in
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the court in terms of the said decree. In the
present case, neither the said deposit was made
within the stipulated time nor extension of time
was sought or granted and also no explanation
has been furnished for the delay in the making
of the deposit. No doubt, as contended by the
learned counsel for the decree-holders, relying
on the judgment of this Court in Ramankutty
Guptan v. Avara [Ramankutty Guptan v. Avara,
(1994) 2 SCC 642], in an appropriate case the
court which passed the decree could extend the
time as envisaged in the Specific Relief Act,
1963. In the present case no such steps have
been taken by the decree-holders."
He relied on the judgment of P.Shyamala Vs. Gundlur
Masthan reported in 2023 SCC Online SC 184, wherein at
paragraph Nos.24 observed as follows:
"24. 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 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 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
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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."
6. Relying on these judgments, learned counsel
submits that the trial Court had erred in dismissing the
application filed by the judgment debtor under Section 28 of
the Specific Relief Act.
7. Learned Senior counsel appearing for the decree
holder submits that the decree holder is the brother-in-law of
the judgment debtor. As per the case of the plaintiff, an
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amount to an extent of 1 acre and 30 guntas where the
defendant has agreed to sell for an amount of Rs.30,000/- way
back on 02.05.1989 itself and an amount of Rs.25,000/- is
paid. The remaining amount that needs to be paid is Rs.5,000/-
. The judgment and decree is silent with regard to the balance
sale consideration and when it has to be paid. The suit was
decreed with cost of Rs.3,158/- and the appeal was dismissed
with cost of Rs.1,149/-. If both these amount are paid, what is
left is Rs.5,000/- is Rs.693/-.
8. Learned Senior counsel has drawn the attention of
the Court to Section 28 of Specific Relief Act and learned Senior
counsel submits that as per that section, firstly, there should be
a stipulated time, which is not present in this case and
secondly, the relief of specific performance which is an
equitable relief and the Court has to look at the conduct of the
parties having executed an agreement of sale in the year 1989.
In the year 1992, he sells the property in favour of his wife and
after the suit is filed, wife sells the property in favour of sons
and sons in turn sells property in favour of third parties and
those third parties have filed an application under Order 21
Rule 97 of CPC in the execution and those petitions have taken
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a lot of time, both I.As are dismissed and in respect of one
objector, RA.No.50/2013 filed by them is dismissed.
9. It is submitted that all these things demonstrate the
conduct of the defendant and during the pendency of the suit
one after the other, the sales have taken place and when he
has no interest in the property where his wife and children have
sold the properties in favour of third parties, he comes up with
an application under Section 28 of Specific Relief Act to rescind
the contract.
10. It is submitted that the Court has to look at the
conduct and in terms of justice he is not entitled for any relief.
It is submitted that the judgments that are relied on by the
learned counsel for the petitioners do not apply to the facts and
circumstances of the case and further in those cases, it is an
exparte decree and further the finding of the Court supports
the case of the decree holder. In those cases where balance
sale consideration is substantial amount, whereas in this case,
it is only Rs.693/- and for an amount of Rs.693/-, the contract
cannot be rescinded.
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11. Having heard the learned counsel for the
petitioners, learned Senior counsel for the respondents and
perused the entire material on record. The admitted facts in
this case are, the suit was decreed on 30.11.1998 and against
that, appeal was preferred and that is dismissed on
13.07.2005. No time frame is fixed in the judgment and decree
for paying the balance sale consideration, then execution
petition is filed on 20.03.2006, even on 20.03.2006, the
plaintiff being the decree holder has not paid the remaining sale
consideration and he has filed the execution petition, then for
seeking rescission of the contract on 24.11.2014 an application
is filed by the defendant/JDR. Even at that point of time,
amount that is due i.e., part of the sale consideration is not
paid by the decree holder.
12. It is submitted before this Court during the course
of argument that in the year 2018, memo is filed that they are
ready to deposit the remaining sale consideration. The
argument of the learned Senior counsel that as the decree is
silent and as there is no specific time, Section 28 of the Specific
Relief Act is not attracted. On that submission, this Court is not
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able to appreciate and it has no legs to stand. Just because, the
decree is silent about the time line for payment of balance of
sale consideration that does not mean that the decree holder
eternally will wait and will not deposit the amount. Even when
an application is filed for rescission of the contract, even at that
point of time also, the decree holder is not even vigilant and he
has not even taken steps to pay the amount, whether it is
substantial amount or it is meager amount, duty is cost upon
the decree holder to pay the amount to show his bonafide and
then he can seek for execution of the judgment and decree.
13. As such, this Court is not able to appreciate the said
submission made by the learned Senior counsel on behalf of
the decree holder. Then coming to the contention about the
conduct of the defendant, the Courts have concurrently held
that the defendant has received the amount and executed the
agreement. In such case, after receiving the sale consideration,
the plaintiff has executed the registered sale deed in favour of
his wife and wife in turn to the children, children in turn
executed the sale deeds in favour of third parties and third
parties filed claim petitions before the Executing Court.
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14. The relief of specific performance being an equitable
relief, the conduct of the parties assumes significance. When
the defendants have nothing to do with the property and when
they sold the property by way of several transactions, how they
are interested with the present execution and how they are
filing the applications one after the other shows the conduct of
the judgment debtor. Looking at the application under Section
28 of the Specific Relief Act and looking at the amount of
Rs.693/- and the conduct of the defendant, this Court is of the
view that the application filed by the defendant cannot be
entertained. Accordingly, the following
ORDER
1. The writ petition is dismissed.
2. All the I.As., if any, shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
PB
