Punjab-Haryana High Court
Babbar Bhan Thr Lr vs Banarasi Das Thr Lr And Others on 21 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:042134
CR-1831-2024 (O&M) 1 2024:PHHC:042134
139 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-1831-2024 (O&M)
Date of decision: 21.03.2024
Babbar Bhan (since deceased) through his LR
....Petitioner
Versus
Banarasi Dass (since deceased) through his Lrs and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr.Manoj Kumar Taya, Advocate for the petitioner
ANIL KSHETARPAL, J (Oral)
1. This is the judgment debtor's revision petition to assail the
correctness of the Executing Court's order dated 27.02.2024, while
dismissing his application under Section 28 of the Specific Relief Act,
1963 as well as dismissing his objection petition.
2. In a suit for possession by way of the specific performance
of the agreement to sell, the trial court decreed the suit on 08.04.2013.
The penultimate paragraph of the judgment reads as under:-
"25. As a sequel to afore
mentioned discussion, the suit of the plaintiffs
succeeds and the same is hereby decreed with costs.
Decree for possession by way of specific performance
of the agreement to sell dated 3.5.2008 Ex.P6 is
passed in favour of the plaintiffs and as against
defendant. The defendant is directed to get the sale
deed executed and registered in respect of the suit
property in favour of the plaintiffs as per the terms
and conditions of the agreement to sell dated
3.5.2008 Ex.P6, within a period of two months from
today after receiving the balance sale consideration
amount. The defendant is restrained from alienating
the suit property to any other person except the
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plaintiffs. In case, the defendant fails to get the sale
deed executed and registered within the period of two
months from today, then the plaintiffs shall be liberty
to get the sale deed executed and registered through
process of Court. Decree-sheet be prepared
accordingly. File be consigned to the record room
after due compliance."
3. The petitioner filed the first appeal, which was dismissed on
11.09.2018. On 24.04.2019, the decree-holder filed the execution
petition alongwith an application for permission to deposit the amount.
However, the Executing Court issued notice to the judgment debtor and
thereafter, proceeded to decide the objection petition. The application
filed by the judgment debtor under Section 28 was also dismissed.
4. Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook.
5. The learned counsel representing the petitioner has made
the following submissions:-
i) The execution petition has been filed after a delay of
11 years.
ii) The decree-holder was never ready and willing to
perform his part of the contract.
iii) The First Appellate Court never granted any interim
protection to the petitioners.
iv) The decree-holder has never applied for extension of
time for deposit of the amount.
6. This Court has considered the submissions made by the
learned counsel representing the parties.
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7. It is evident that there is an error in the directions issued by
the trial court in the penultimate. There is no direction by the trial court
that the decree-holder will deposit the balance sale consideration in the
court within the period specified which is the requirement of the law. In
a suit for the specific performance of the agreement to sell, the court is
required to pass a conditional decree directing the decree-holder to
deposit the remaining amount within the period specified by the court.
Moreover, it is the petitioner, who filed the first appeal, which remained
pending for more than 6 years. The decree-holder was issued notice in
the appeal. Thereafter, the appeal was dismissed only on 11.09.2018.
Thus, the judgment and decree passed by the trial court merged into the
judgment and decree passed by the First Appellate Court. Some time
was taken for supply of copy of the judgment and decree passed by the
First Appellate Court. The execution petition alongwith an application
for deposit of the amount was filed within six months from the judgment
and decree passed by the First Appellate Court. Hence, the first
submission of the learned counsel representing the petitioner has no
basis.
8. As far as the second submission of the learned counsel
representing the petitioner is concerned, it may be noted that
concurrently the trial court as well as the First Appellate Court has
recorded a finding that the plaintiffs/decree-holders were always ready
and willing to perform their part of the contract. The attention of the
Court has not been drawn to sufficient material to prove that the decree-
holder, after the judgment and decree was passed by the First Appellate
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Court, neglected to pay the amount. At the cost of repetition, the decree-
holders filed an application for permission to deposit the amount
alongwith the execution petition, however, the court did not pass the
order.
9. Learned counsel representing the petitioner's third
submission needs no further elaboration, particularly when the judgment
and decree passed by the trial court has merged into the judgment and
decree passed by the First Appellate Court. In this case, as already
noticed, the decree passed by the trial court was not in accordance with
law. Hence, the decree-holder cannot be made to suffer for the mistake
of the court.
10. With reference to the last submission, it may be noticed that
the Executing Court has found that the execution petition was promptly
filed by the decree-holders.
11. Keeping in view the aforesaid facts, no ground to interfere
is made out.
12. Hence, dismissed.
13. All the pending miscellaneous applications, if any, are also
disposed of.
21.03.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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