Bakshish Singh vs Surjeet Singh And Others
2024 Latest Caselaw 5362 P&H

Punjab-Haryana High Court

Bakshish Singh vs Surjeet Singh And Others on 11 March, 2024

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                                         Neutral Citation No:=2024:PHHC:034441




                                                                    2024:PHHC:034441
CR-7869-2017 &
CR-7964-2017                                                                              1

121          IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                CR-7869-2017 (O&M)
                                               Date of decision:11.03.2024

BAKSHISH SINGH
                                                           ....... PETITIONER
                                   VERSUS

SURJEET SINGH AND ANOTHER

                                                            ...... RESPONDENTS

                                                          CR-7964-2017 (O&M)

MALKIAT SINGH AND OTHERS
                                                           ....... PETITIONERS
                                   VERSUS

BAKSHISH SINGH AND OTHERS

                                                            ...... RESPONDENTS

CORAM : HON'BLE MR.JUSTICE ANIL KSHETARPAL

Present:-    Mr. Ashish Aggarwal, Senior Advocate with
             Ms. Aashna Aggarwal, Advocate
             for the petitioner(s) in CR-7869-2017 and
             for respondent No.1 in CR-7964-2017.

        Mr. Rajiv Kataria, Advocate
        for respondent No. 1 (in CR-7869-2017).
                    ***
ANIL KSHETARPAL, J. (ORAL)

1. Through these two connected revision petitions, the petitioner

(judgment debtor and subsequent purchasers) assails the correctness of the

order passed by the Executing Court on 13.10.2017 (Annexure P-5).

2. In order to comprehend the issues involved in these two revision

petitions, the relevant facts, in brief, are required to be noticed.

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3. Sh. Surjeet Singh and Sh. Kulwant Singh filed a suit for specific

performance of the agreement to sell against Sh. Bakshish Singh which was

decreed on 27.05.2002. The operative part of the judgment reads as under:-

"It is ordered that the suit of the plaintiffs as such deserves to be dismissed but considering the facts that the defendant is still ready and willing to perform his part of contract, a decree for specific performance of the admitted agreement to sell dated 16.05.1997 Ex. PA is passed subject to the plaintiffs depositing the balance amount of sale consideration of Rs.3,28,000/- within a period of three months from the date of the judgment today.

In the facts and circumstances of the case where the plaintiffs are seen to be at fault, there is no order as to costs."

4. Sh. Bakshish Singh filed an appeal against the judgment and

decree passed by the trial Court which was dismissed on 24.04.2004. Thus, the

conditional decree for specific performance of the agreement to sell subject to

deposit of the remaining amount of Rs.3,28,000/- within a period of three

months from the date of the judgment was upheld. Since, the judgment of the

trial Court merged with the judgment of the First Appellate Court, hence the

date of judgment would be 24.04.2004. The decree holders namely Sh. Surjeet

Singh and Sh. Kulwant Singh were required to deposit the amount of

Rs.3,28,000/- within a period of three months from the date of judgment i.e.

24.04.2004, however, they did not deposit the amount. Thus, no decree came

into force as the decree holder failed to fulfill the condition.

5. On 19.05.2003, Sh. Bakshish Singh executed a sale deed in

favour of Harjinder Singh. Subsequently, on 31.03.2004, Sh. Harjinder Singh

sold 14 Kanals 5 Marlas of land in favour of petitioner Nos. 1 and 2, in CR

No. 7964 of 2017 whereas he sold 13 Kanals 4 Marlas on 17.04.2005, in

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favour of petitioner No.3 in CR No. 7964 of 2017. On 10.09.2015, the decree

holders, namely, Sh. Surjeet Singh and Sh. Kulwant Singh filed an execution

petition.

6. Thereafter, the Executing Court issued notice to the judgment

debtor namely, Sh. Bakshish Singh and on his failure to appear, he was

proceeded against ex-parte. However, the subsequent purchasers were never

impleaded as party in the execution petition.

7. On 16.09.2016 the Executing Court passed the following order in

CR No.7869 of 2017:-

"Report of Ahalmad sought regarding whether any stay regarding the present proceedings have been received, who has reported that no stay order has been received from any Court till date. Ld. Counsel for DH also submitted that nos tay against the present proceedings has been granted. Arguments heard on the application fro giving permission to deposit the remaining sale consideration, amounting Rs. 3,28,000/- in the relevant head. Ld. Counsel for DH has submitted that due to unavoidable circumstances i.e. the death of close relative of DH having remained in custody under section 302 of IPC. He could not file the execution petition and the present application which promptitude. However, the execution petition has been filed within limitation period of 12 years. The plaintiff's suit for specific performance was decreed on 27.5.2002 subject to plaintiff depositing the balance amount of sale consideration Rs.3,28,000/- within a period of three months from the date of judgment. Against this plaintiff preferred an appeal claiming that he had already paid the entire sale consideration. However this claim was declined and appeal was dismissed on 24.4.2004, hence, the present execution petition. It has been argued that the plaintiff may be allowed to deposit the balance sale consideration. Heard DH at the liberty to deposit the balance sale consideration in the government treasury as per the rule and own responsibility. The application is

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disposed off to come up 10.10.2016 for further proceedings".

8. Subsequently, the sale deed of the suit land including the land

which was already purchased by the subsequent purchasers was executed by

the Court officials in favour of decree holders i.e. Sh. Surjeet Singh and Sh.

Kulwant Singh. Thereafter, the proceedings for delivery of possession was

initiated. At that stage, the judgment Debtor- Sh. Bakshish Singh and Sh.

Malkiat Singh, Sh. Baljit Singh and Smt. Ramandeep Kaur, the subsequent

purchasers filed an objection petition.

9. The learned Executing Court has partly dismissed the objection

petition vide order dated 13.10.2017. It has been held that in absence of decree

for possession in favour of the decree holder, no warrants of possession can

issued.

10. Challenging the correctness of the aforesaid order, these revision

petitions have been filed.

11. Heard the learned counsel representing the parties at length and

with their able assistance perused the paper books.

12. On one hand, the learned Senior counsel representing the

petitioners in both the revision petitions contends that in a suit for specific

performance of the agreement to sell, a conditional decree is passed directing

the decree holders to deposit the amount within a period specified. He submits

that the aforesaid conditional decree would become complete decree only if

the condition as stipulated by the Court is fulfilled by the decree holder. In

absence thereof there will be no decree comes into existence/subsists in favour

of the decree holders.

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13. Per contra, the learned counsel representing the respondents

submits that the petitioners have not challenged the correctness of the order

passed by the Executing Court, on 16.09.2016.

14. This Court has considered the submissions of the learned counsel

representing the parties.

15. In a suit for specific performance of the agreement to sell

ordinarily the conditional decree is passed which would become

executable/implementable only if the decree holder fulfills the condition. In

this case, a conditional decree was passed in favour of Sh. Surjeet Singh and

another directing them to deposit Rs. 3,28,000/- within a period of three

months from the date of judgment i.e. 27.05.2002, however, they failed to

fulfill the aforesaid pre-condition. An appeal filed by Sh. Bakshish Singh was

dismissed on 24.04.2004. Hence, the conditional decree passed by the trial

Court merged into the decree passed by the First Appellate Court. Thus, the

period of three months for deposit of the amount will begin to run from

24.04.2004. Hence, the period came to an end on 24.07.2004. Once the decree

holders failed to deposit the amount, there was no decree which could be

executed. In this case, the execution petition was filed in the month of

September 2015, i.e. after a period of more than 11 years. The decree holders

never applied for extending the period for deposit of the amount. In these

circumstances, there was no effective decree which could be executed. Once

the decree passed in favour of the decree holder is subject to fulfillment of a

condition, then in the eventuality of failure of the decree holder to fulfill that

condition, no decree comes into force in favour of the decree holders. It is

evident that on 16.09.2016, the Executing Court passed the order without

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being alive to the aforesaid situation. Though, the Executing Court has

recorded that decree holders remained in custody in a case under Section 302

IPC, however, the period for filing execution petition will begin to run only if

there is a enforceable decree in favour of the decree holders.

16. As already noted, there was no decree in favour of the decree

holders because they failed to fulfill the condition precedent for drawing of

final decree.

17. As far as objection of the learned counsel representing the

respondents that the correctness of the order dated 16.09.2016, has not been

challenged, it may be noted that the same was passed by the Executing Court.

Since, there was no decree in favour of the decree holders hence, the order, if

any, passed by the Executing Court is without jurisdiction.

18. In view of the foregoing discussion, this Court is left with no

choice but to set aside the impugned order dated 13.10.2017. The execution

petition filed by Sh. Surjeet Singh and another shall stands dismissed.

19. Accordingly, both the revision petitions are allowed.

20. All the pending miscellaneous applications, if any, are also

disposed of.

                                                          (ANIL KSHETARPAL)
                                                             JUDGE
11.03.2024
Anu

                Whether speaking/reasoned               Yes/No
                Whether Reportable :                    Yes/No




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