Mohan Lal vs Hari Om Kumar
2024 Latest Caselaw 3902 Patna

Patna High Court

Mohan Lal vs Hari Om Kumar on 12 June, 2024

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

         IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.584 of 2017
     ======================================================
1.1. Lalti Devi W/o Late Mohan Lal R/o- North Mohalla- Mirganj, P.O. and P.S.-
      Kharpakwa, Distt.- Gopalganj.
1.2. Anil Kumar S/o Late Mohan Lal R/o- North Mohalla- Mirganj, P.O. and
     P.S.- Kharpakwa, Distt.- Gopalganj.
1.3. Sunil Kumar S/o Late Mohan Lal R/o- North Mohalla- Mirganj, P.O. and
     P.S.- Kharpakwa, Distt.- Gopalganj.
1.4. Seema Devi D/o Late Mohan Lal R/o- North Mohalla- Mirganj, P.O. and
     P.S.- Kharpakwa, Distt.- Gopalganj.
1.5. Manorma Devi D/o Late Mohan Lal R/o- North Mohalla- Mirganj, P.O. and
     P.S.- Kharpakwa, Distt.- Gopalganj.
1.6. Shilpi Devi D/o Late Mohan Lal R/o- North Mohalla- Mirganj, P.O. and
      P.S.- Kharpakwa, Distt.- Gopalganj.
                                                           ... ... Petitioners
                                        Versus
     Hari Om Kumar S/o Bhagwati Prasad, R/o Sabzi Mandi, Mirganj, P.S.-
     Mirganj, Distt.-Giopalganj
                                                         ... ... Respondent
     ======================================================
    Appearance :
    For the Petitioner/s   :      Mr. Shashi Shekhar Dwivedi, Sr. Advocate
                                  Mr. Ranjan Kumar Dubey, Advocate
                                  Mr. Parth Gaurav, Advocate
    For the Respondent/s   :      Mr. Rajesh Kumar, Advocate
    ======================================================
    CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
    CAV JUDGMENT
     Date :12-06-2024

                   The present civil misc. petition has been filed under

     Article 227 of the Constitution of India against the order dated

     06.03.2017

passed by the learned Subordinate Judge-I,

Gopalganj in Misc. Case No. 304 of 2016 rejecting the prayer of

the petitioner made under Section 28 of the Specific Relief Act,

1963.

02. The conspectus of the case, as it appears from the

record, is that the respondent file Title Suit No. 511 of 2002 Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

against the original petitioner for grant of a decree for specific

performance of contract with respect of 12 dhurs of land out of

Plot No. 1069, Khata No.249 in the town of Mirganj Bazar,

District-Gopalganj. The plaintiff/respondent contended that the

defendant/petitioner contracted to sale the disputed land for a

sum of Rs. 1,20,000/-. The petitioner took earnest money of Rs.

65,000/- from the respondent and agreed to execute the sale-

deed on receipt of the rest amount of Rs. 55,000/-. The suit was

decreed and the operative part of the said order reads as under:-

"Under the aforesaid facts and circumstances, it is ordered that the suit is decreed in favour of the plaintiff and defendant is directed to receive the remaining consideration money of Mahadanama, Rs. 55,000/- from the plaintiff and execute the sale deed within a month in favour of plaintiff failing which the plaintiff shall be entitled to get the same executed and registered through the process of the court on depositing the balance amount of Rs. 55,000/- at his cost, which shall be binding upon the defendant/applicant."

However, it appears that the balance amount of Rs.

55,000/- was not tendered to the defendant/petitioner who filed

Title Appeal No. 48 of 2005 in the court of District Judge,

Gopalganj and the said appeal came to be dismissed vide Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

judgment and decree dated 01.12.2015 passed by learned 3rd

Additional District Judge, Gopalganj. Against the said judgment

and decree, the petitioner preferred Second Appeal No. 37 of

2016 before this Court, which is still pending. It further

transpires from the record that during pendency of the first

appeal, the respondent filed Execution Case No. 108 of 2015 in

the court of learned Subordinate Judge-I, Gopalganj on

11.06.2015 for execution of decree dated 23.03.2005 passed in

Title Suit No. 511 of 2002. However, in the said execution case,

nothing was said about tendering of the balance amount.

However after eight months of filing the execution case, the

respondent moved for amendment of prayer seeking fresh

direction against the petitioner to accept Rs. 55,000/-. But, this

sum of Rs. 55,000/- was not deposited by the opposite party in

the suit or in the execution case. Thereafter, on 07.04.2016, the

respondent filed an application before the learned executing

court seeking permission to deposit Rs. 55,000/-. The petitioner

filed objection under Section 28 of the Specific Relief Act,

praying to dismiss the execution case treating the contract of

sale as having been rescinded on the ground mentioned in the

application. Further case of the petitioner(s) is that as the

execution court was not passing order on the petition of the Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

petitioner filed under Section 28 of the Specific Relief Act and

an objection was taken about not filing the suitable petition in

the suit, the petitioner filed Misc. Case No. 304 of 2016 in the

court of learned Subordinate Judge-I, Gopalganj on 14.09.2016

under Section 28 of the Specific Relief Act with a prayer to

rescind the contract. Even before admission of misc. case, an

objection was filed by the decree-holder on 03.01.2017

contending that the petition of the petitioner filed under Section

28 of the Specific Relief Act was not maintainable. After hearing

the parties, the learned Sub Judge-I, Gopalganj rejected the

petition filed on behalf petitioner/judgment debtor.

03. Learned senior counsel appearing on behalf of the

petitioners submitted that a person seeking specific relief must

prove his readiness and willingness to perform his part of

contract at all stages of the litigation which continues even after

getting the decree in his favour, till he has complied and fulfilled

his part of contract. This is the mandate of Section 16(c) of the

Specific Relief Act. Learned senior counsel further submitted

that in the instant case, on 23.03.2005, while granting a decree

in favour of the plaintiff, the court directed the defendant to

receive Rs. 55,000/- from the plaintiff and then to execute the

deed and the defendant was further ordered that after taking the Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

balance amount of Rs. 55,000/-, he would execute the sale deed

within a month. So, this was also a direction to the plaintiff to

pay the amount within a period of one month. Admittedly, this

amount was never paid to the defendant in the suit at any of its

stages although such deposit was required to be made in the suit

itself. Thereafter, title suit was dismissed on 01.12.2015 and

second appeal was filed in this Court and no deposit or no

prayer for extension was made and no extension was even

granted by the appellate court. On 11.06.2015, during pendency

of the appeal, execution case bearing No. 108 of 2015 was filed

for execution of sale deed and delivery of possession by

breaking open the locks, still no deposit was made. After eight

months, prayer was amended to accept deposit and on

07.04.2016, a petition to deposit Rs. 55,000/- was made, but

again no prayer for extension of time was made. Subsequently,

the balance amount was deposited on 15.03.2017. Learned

senior counsel further submitted that Section 148 of the Code of

Civil Procedure provides for enlargement of time but the same

cannot exceed 30 days in total. Similarly, Order XX Rule 12(A)

of the Code also provides where a decree for specific

performance of a contract for the sale of immovable property

orders that the purchase-money or other sum be paid by the Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

purchaser, it shall specify the period within which the payment

shall be made. In support of his submission, Mr. Dwivedi relied

on the decisions of Hon'ble Supreme Court in the case of

Chanda (dead) through LRs. Vs. Rattni and Anr., reported in

(2007) 14 SCC 26 wherein rescission of sale of contract was

held to be proper when the purchaser failed to pay the balance

consideration for 6 years and no specific prayer for deposit of

balance amount or extension of time in relation thereto was

made before the court below. Further, the plea that there was no

direction to pay the amount within a particular time was held to

be unsustainable and untenable. In case of Prem Jeevan Vs. K.

S. Venkata Raman and Anr, reported in (2017) 11 SCC 57, the

Hon'ble Supreme Court held in Paras-8, 9 and 10 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 the court in term 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 Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

making of the deposit. No doubt, as contended by the learned counsel for the decree-holders, relying on judgment of this Court in Ramankutty Guptan v. Avara, in an appropriate case the Court which passed the decree could extend the time as envisaged in the Specific Relief, 1963. In the present case no such steps have been taken by the decree-

holders.

10. In above circumstances, the contention, advanced on behalf of the decree-holders, respondents herein, that unless the judgment-debtor seeks rescission of the contract in terms of Section 28 of the Specific Relief Act, the decree remains executable in spite of expiry of period for deposit, with the only obligation on the part of the decree-holders to pay interest, cannot be accepted."

Apart from this, learned senior counsel also relied on the

decision of this Court (Ranchi Bench) in the case of Bansi Sao

Vs. Jageshwar Prasad Sao, reported in (1997) 1 PLJR 1017 on

the situation what would happen if the payment was not made

within the stipulated period. Mr. Dwivedi further submitted that

no explanation has been put forward by the plaintiff/respondent

for non deposit of the amount either before the trial court or first

appellate court or second appellate court. Further, no petition

with prayer for extension of time has been filed. Thus, there was

no readiness or willingness on the part of decree-

holder/respondent to perform his part of contract and in these Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

circumstances, Section 28 of the Specific Relief Act would

come into play and render the decree to be non est and

inexecutable in the eyes of law.

04. Countering the contention of the learned senior

counsel of petitioners, learned counsel for the respondent

submitted that the present petition is not maintainable as there is

no infirmity in the impugned order and the same requires to be

affirmed. Learned counsel further submitted that in terms of

orders of the learned trial court, the plaintiff/respondent had

always been ready to pay Rs. 55,000/- to the judgment debtor,

who refused to receive the money and was not ready to execute

the sale deed. For this reason, the plaintiff/respondent deposited

the consideration amount of Rs. 55,000/- by chalan in the name

of judgment debtor and thereafter, the sale deed was executed by

the process of court on 30.03.2017. The judgment

debtor/petitioner(s) by his own act delayed the execution of the

sale deed and refused to accept the money and there was no fault

on part of the decree-holder/respondent. Learned counsel further

submitted that the natural corollary of execution of sale deed is

handing over of the possession and the learned trial court was

perfectly within its rights to direct for delivery of possession.

Learned counsel further submitted that Section 16(c) of Specific Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

Relief Act has no role to play in the present case as the decree-

holder/respondents has always been ready and willing to

perform his part of the contract, but it was the judgment debtor

who has been refusing to accept the payment and for this reason,

the decree-holder/respondent was compelled to deposit the

money through Chalan by the orders of the court. Learned

counsel further submitted that the explanation attached with

Section 16(c) of the Specific Relief Act, makes it clear that in a

contract involving the payment of money, it is not essential for

the plaintiff to actually tender to the defendant or to deposit in

court any money except when so directed by the court. Learned

counsel further submitted that there was no direction to the

plaintiff to deposit money within any stipulated period though

the defendant was directed to execute the sale deed within a

month of tendering the money by the plaintiff. So, there is no

fault on the part of the decree-holder/respondent and the learned

trial court has rightly passed the impugned order and hence,

there is no infirmity in the impugned order and the same needs

to be sustained.

05. I have given my thoughtful consideration to the

rival submission of the parties as well as facts and circumstances

of the case. The judgment and decree in Title Suit No. 511 of Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

2002 was passed on 23.03.2005. While passing the orders, the

learned trial court directed the defendant to receive the

remaining consideration money of Mahadnama, i.e., Rs.

55,000/- from the plaintiff and to execute the sale deed within a

month in favour of the plaintiff. However, it appears, for about

11 years, no petition has been filed for depositing the money in

terms of judgment and decree dated 23.03.2005, as the petition

to deposit the money was filed on 07.04.2016. No doubt, the

learned trial court did not specify or stipulate a time period

withing which the plaintiff was required to make the payment of

balance amount to the defendant, still it could only be a

reasonable time and more so when the defendant was directed to

execute the sale deed within a month of receiving the money

from the plaintiff and by no stretch of imagination the

reasonable period could be 11 years. When no period has been

mentioned in the judgment and decree of the learned trial court

for making the payment, the reasonable time period could not

stretch beyond the period of three years. It is also pertinent to

note here that there has been never any application for extension

of time for making the payment.

06. The dates and events as discussed in preceding

paragraph clearly show lack of commitment on the part of the Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

decree-holder to get the decree executed. The chronology

reflects very poorly regarding the conduct and willingness of the

decree holder to perform his part of contract. After passing of

the judgment in the year 2005, nothing was done for 11 years by

the decree-holder/respondent. If there was any willingness, it is

not reflected from the record. When the decree-

holder/respondent kept silent for 11 years in getting the sale-

deed executed, his conduct shows gross negligence and, in fact,

rather waiver of his claim. Even if the contention of the learned

counsel for the petitioner is taken into consideration that the

judgment-debtor refused to accept the balance consideration

amount, nothing could have prevented the decree holder to get

the sale-deed executed through the process of court by

depositing said amount in the court itself. This was also one of

the directions of the learned trial court which passed the decree

for specific performance. There is not an iota of material to

show that the decree-holder took any step towards the same.

Ground of pendency of appeal could not help the case of decree-

holder as perusal of impugned order shows the learned trial

court placed much reliance on pendency of the appeal which

was later on dismissed. If there was no stay by the appellate

court against the judgment and decree or the proceeding to be Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

taken for enforcement of decree, the pendency of appeal is

immaterial. Therefore, the consideration of learned trial court in

this regard is completely erroneous.

07. In the case of Ramankutty Guptan v. Avara,

reported in AIR 1994 SC 1699 : (1944) 2 SCC 642, the Hon'ble

Supreme Court held that in a suit where a decree for specific

performance of contract for sale of immovable property has

been made and time has been prescribed for performance, it

should be complied within time. On its default, power has been

given to the court that passed the decree to further extend the

time as the court may allow and the purchase money or any

other sum needs to be paid within the extended time. Now,

remedy under Section 28(1) of the Specific Relief Act for

extension of time would require the affected party to approach

the same court by moving application which ought to be treated

as an interlocutory application on the original side and ought to

have been disposed of in accordance with law. However, no

such application has been filed seeking extension of time.

Article 137 of the Limitation Act prescribes a time period of

three years for filing any such application. If the petition for

depositing the remaining amount of the agreement to sale deed

is taken as a prayer for extension of time, even then such deposit Patna High Court C.Misc. No.584 of 2017 dt.12-06-2024

could not help the cause of the decree-holder for the same

reason that it was barred by the law of limitation as no extension

of time was granted and even such deposit was not before the

court which passed the decree. In the facts and circumstances,

the present case is covered by the ratio laid down in case of

Chanda (dead) through LRs. (supra).

08. In the light of discussion made here-in-before, I

am of the considered opinion that the contract came to an end

and the judgment-debtor was entitled to rescission of the

contract. For the said reason, the learned trial court committed

error of jurisdiction when it rejected the prayer of the petitioner

made under Section 28 of the Specific Relief Act to rescind the

contract. As as result, the order dated 06.03.2017 passed by the

learned Subordinate Judge-I, Gopalganj in Misc. Case No. 304

of 2016 is set aside and Misc. Case No. 304 of 2016 is allowed.

09. Accordingly, the present civil misc. petition stands

allowed.

(Arun Kumar Jha, J) Ashish/-

AFR/NAFR                AFR
CAV DATE                06.05.2024
Uploading Date          12.06.2024
Transmission Date       NA