[Cites 14, Cited by 0]
Rajasthan High Court - Jodhpur
Mangal Chand vs Babulal (2025:Rj-Jd:53633) on 11 December, 2025
[2025:RJ-JD:53633]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 19098/2024
Mangal Chand S/o Late Shri Nanakchand, Aged About 72 Years,
Resident of Ward No. 22, Churu (Raj.).
----Petitioner
Versus
1. Babulal S/o Shri Bhagwan Das Sharma, Resident Of Ward
No. 28, Behind Goyan-Ka-Kothi, Gandhi Colony, Churu
(Raj.).
2. Onkar Mal S/o Late Shri Ladu Ram, Resident Of Ward No.
12, New 26, Churu (Raj.).
3. Amarchand (Deceased) S/o Late Shri Nanakchand, Aged
About 61 Years, Resident Of Ward No. 16, New 22, Churu
(Raj.), Presently Residing At Outside Railway Station,
Pipleshwar Hanuman Mandir, Churu (Raj.). (Information
Of Death Has Been Given To The Learned Trial Court But
No Steps Have Been Taken Before The Learned Trial
Court)
4. Legal Representatives Of Late Shri Shyam Lal, Through
Lrs.
4/1. Smt. Madhu W/o Late Shri Shyam Lal, Resident of Ward
No. 25, Churu (Raj.), C/o Kishan Lal Sharma, Nathusar
Gate, Lali Bai Bagichi, Near Gaurakhnath Ji Mai Dir,
Bikaner (Raj.).
4/2. Yogesh S/o Late Shri Sayam Lal, Aged About 11 Years,
Resident Of Ward No. 25, Churu (Raj.), Through Guardian
Smt. Madhu (Mother), C/o Kishan Lal Sharma, Nathusar
Gate, Lali Bai Bagichi, Near Gaurakhnath Ji Mandir,
Bikaner (Raj.).
4/3. Munni D/o Late Shri Shyam Lal, Aged About 8 Years,
Resident Of Ward No. 25, Churu (Raj.), Through Guardian
Smt. Madhu (Mother), C/o Kishan Lal Sharma, Nathusar
Gate, Lali Bai Bagichi, Near Gaurakhnath Ji Mandir,
Bikaner (Raj.).
----Respondents
Connected With
S.B. Civil Writ Petition No. 3961/2022
Mangal Chand S/o Late Shri Nanakchand, Aged About 62 Years,
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By Caste Brahmin, Resident Of Ward No. 22, Churu (Raj.)
----Petitioner
Versus
1. Babulal S/o Shri Bhagwan Das Sharma, Resident Of Ward
No. 28, Behind Goyan-Ka-Kothi, Gnadhi Colony, Churu
(Raj.)
2. Onkar Mal S/o Late Shri Ladu Ram, Resident Of Ward No.
12, New 26, Churu (Raj.)
3. Amarchand (Deceased) S/o Late Shri Nanakchand, Aged
About 61 Years, Resident Of Ward No. 16, New 22, Churu
(Raj.), Presently Residing At Outside Railway Station,
Pipleshwar Hanuman Mandir, Churu (Raj.)
4. Legal Reresentatives Of Late Shri Shyam Lal, Through
4/1. Smt. Madhu W/o Late Shri Shyam Lal, Resident Of Ward
No. 25, Churu (Raj.), C/o Kishan Lal Sharma, Nathusar
Gate, Lali Bai Bagichi, Near Gaurakhnath Ji Mandir,
Bikaner (Raj.)
4/2. Yogesh S/o Late Shri Shyam Lal, Aged About 11 Years,
Resident Of Ward No. 25, Churu (Raj.) Through Guardian
Smt. Madhu (Mother), C/o Kishan Lal Sharma, Nathusar
Gate, Lali Bai Bagichi, Near Gaurakhnath Ji Mandir,
Bikaner (Raj.)
4/3. Munni D/o Late Shri Shyam Lal, Aged About 8 Years,
Resident Of Ward No. 25, Churu (Raj.) Through Guardian
Smt. Madhu (Mother), C/o Kishan Lal Sharma, Nathusar
Gate, Lali Bai Bagichi, Near Gaurakhnath Ji Mandir,
Bikaner (Raj.)
----Respondents
S.B. Civil Writ Petition No. 15791/2023
Mangal Chand S/o Late Shri Nanakchand, Aged About 70 Years,
R/o Ward No. 22, Churu (Raj.).
----Petitioner
Versus
1. Babulal S/o Shri Bhagwan Das Sharma, R/o Ward No. 28,
Behind Goyan Ka Kothi, Gandhi Colony, Churu (Raj.).
2. Onkar Mal S/o Late Shri Ladu Ram, R/o Ward No. 12, New
26, Churu (Raj.).
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3. Amar Chand (Decesed) S/o Late Shri Nanakchand, R/o
Ward No. 16, New 22, Churu (Raj.), Presently Residing At
Outside Railway Station, Pipleshwar Hanuman Mandir,
Churu (Raj.)
4. Legal Representative Of Late Shri Shyam Lal, Through -
4/1. Smt. Madhu W/o Late Shri Shyam Lal, R/o Ward No. 25,
Churu (Raj.) C/o Kishan Lal Sharma, Nathusar Gate, Lali
Bai Bagichi, Near Gaurakhnath Ji Mandir, Bikaner (Raj.).
4/2. Yogesh S/o Late Shri Shyam Lal, Aged About 11 Years,
(Minor), R/o Ward No. 25, Churu (Raj.) Through Smt.
Madhu (Mother) C/o Kishan Lal Sharma, Nathusar Gate,
Lali Bai Bagichi, Near Gaurakhnath Ji Mandir, Bikaner
(Raj.).
4/3. Munni D/o Late Shri Shyam Lal, Aged About 8 Years,
(Minor), R/o Ward No. 25, Churu (Raj.) Through Smt.
Madhu (Mother) C/o Kishan Lal Sharma, Nathusar Gate,
Lali Bai Bagichi, Near Gaurakhnath Ji Mandir, Bikaner
(Raj.).
----Respondents
For Petitioner(s) : Mr. D.D Chitlangi
Mr. C.P. Soni
For Respondent(s) : Mr. Shubham Ojha
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Order
ARGUMENTS CONCLUDED ON : 01/12/2025
ORDER RESERVED ON : 01/12/2025
FULL ORDER PRONOUNCED ON : 11/12/2025
All these writ petitions are being disposed of by this common
order, as the issues involved in these writ petitions are
interconnected.
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2. For the sake of convenience, the facts relevant for
adjudication of the present controversy are being taken from S.B.
Civil Writ Petition No.19098/2024.
3. A suit for specific performance of a sale agreement dated
20.07.1993 was filed by Respondent No.2, Onkar Mal, in which a
decree for specific performance was passed on 28.11.2000 against
the present petitioner, Defendant No.1/1, Mangal Chand.
Thereafter, the original decree-holder-respondent No.2 filed
execution application before Additional District Judge, Churu (for
short "the Executing Court"). On 26.06.2006, respondent No.2
appeared before the Executing Court and admitted that he had
received partial possession. He also admitted that he had sold the
decree to respondent No.1-Babulal, and does not want to press
the execution application, which led to dismissal of the execution
application, as not pressed. Respondent No.1, thereafter filed
execution application on 06.09.2012 against which the present
petitioner filed an objection before the Executing Court, which
came to be rejected vide order dated 14.02.2022 aggrieved by
which the petitioner preferred the writ petition (S.B. Civil Writ
Petition No.3961/2022) with the following prayers:-
"(i) That the impugned order dated 14.02.2022
(Annexure 10) passed by the Additional District
Judge, Churu (Raj.) in Civil Execution Petition No.
02/2013, CNR No. RJHC100007732012 titled Babulal
v. Amarchand & others may kindly be quashed and
set aside.
(ii) That the objection petition under section 47 CPC read
with Section 151 CPC (Annexure 8) filed by the
petitioner may kindly allowed as a whole."
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4. Thereafter, respondent No.1, filed two applications before the
Executive Court dated 16.11.2022 and 02.01.2023, respectively
alleging that he is willing to deposit the consideration amounting
to Rs.60,000/- and the same were allowed by the Executing
Court vide order dated 20.07.2023 and a direction was issued to
the petitioner to accept the amount and handover the possession
of the property in question. Aggrieved by which, the petitioner
preferred the writ petition (S.B. Civil Writ Petition No.
15791/2023) with the following prayers:-
"(i) That the impugned order dated 20.07.2023 (Annexure
8) passed by the Additional District Judge, Churu (Raj.) in
Civil Execution Petition No. 02/2013, titled Babulal
v. Amarchand & others may kindly be quashed and set
aside.
(ii) That the Civil Execution Petition No. 02/2013, titled
Babulal v. Amarchand & others pending before Additional
District Judge, Churu may be dismissed and the suit may
also be dismissed for non- compliance of non-deposing of
amount within the time stipulated in judgments & decree
dated 28.11.2000 (Annexure 1)."
5. Subsequently, respondent No.1 filed another application on
22.08.2024 seeking compulsory acceptance of the balance amount
and execution of the sale deed, which also came to be allowed by
the Executing Court vide impugned order dated 24.10.2024, and
the present petitioner was directed to receive the said amount
within seven days, failing which he would be liable for civil
imprisonment under Section 74 CPC, and further issued a
possession warrant. Aggrieved thereby, the petitioner has again
approached this Court invoking its extraordinary jurisdiction under
Articles 226 & 227 of the Constitution of India in S.B. Civil Writ
Petition No.19098/2024 with the following prayers:-
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"1. By an appropriate writ, order or direction, your Lordship
may kindly be pleased to quash and set aside the impugned
order dated 24.10.2024 (Annexure 16) and possession
warrant (Annexure 17) passed by the Additional District
Judge, Churu (Raj.) in Civil Execution Petition No. 183/14
(02/2013) titled "Babulal v. Amarchand & others" may
kindly be quashed and set aside.
2. By an appropriate Writ, Order or Direction, your Lordship
may kindly be pleased to dismissed the application dated
22.08.2024 filed by the respondent No. 1 "Babulal v.
Amarchand & others."
6. Learned counsel for the petitioner, while praying for quashing
the impugned order dated 24.10.2024 in S.B. Civil Writ Petition
No.19098/2024, submitted that the order impugned is ex facie
perverse on the ground that the original decree-holder who had
already received partial possession, sold his rights to respondent
No.1, and thereafter withdrew the execution petition on
26.06.2006, and therefore revival of execution at the instance of
respondent No.1 is not permissible in the eye of law. It was
further contended that the Executing Court has failed to
appreciate the mandatory requirements of Order XX Rule 12-A
CPC regarding deposit of balance consideration within the
stipulated time, which constitutes a condition precedent for
crystallizing the preliminary decree into a final decree. It was
further submitted that the delay of more than 22 years in
depositing the amount is incapable of being condoned, especially
since the matter is strictly governed by Section 28 of the Specific
Relief Act, 1963, (for short "the Act") which not only excludes any
scope for condoning such negligence on the part of respondent
no.1, but also mandates that, upon such failure, the contract must
be rescinded. It was further submitted that though two more writ
petitions challenging earlier orders passed in the same execution
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proceedings are already pending before this Court, yet the
Executing Court has proceeded in undue haste, rendering the
impugned orders arbitrary and unsustainable. To buttress his
contentions, the learned counsel placed reliance on the following
judgments:
1. V.S. Palanichamy Chettar Firm vs. C. Alagappan
[1999 LawSuit(SC)119]
2. R. Shyamala vs. Gundlur Mastan
[2023 LawSuit(SC) 170]
3. Prem Jeevan vs. K.S. Venkataraman and another
[2017 AIR (SC) 623]
4. Ravi Setia vs. Madanlal and others
[2019 (9) SCC 381]
5. Bakhtawar Singh vs. Mst. Inder Kaur
[2003 (9) SCC 606]
7. Per contra, learned counsel for the respondents submitted
that the writ petition, bearing S.B. Civil Writ Petition
No.19098/2024, is instituted solely to thwart the execution of the
decree that remained unsatisfied for over two decades. It was
contended that the petitioner has indulged in multiplicity of
proceedings and that the objections now raised stand concluded
by earlier orders of the Executing Court, thereby attracting the bar
of constructive res judicata. It was further urged that the decree
itself cast the obligation upon the petitioner to obtain the requisite
NOC, which he failed to procure for more than twenty years, and
that the respondent, to avoid further delay, obtained and filed the
NOC before the Executing Court. It was further submitted that the
respondent has consistently demonstrated readiness and
willingness by repeatedly seeking permission to deposit the
balance consideration, whereas the petitioner has deliberately
avoided compliance. As far as, the issues of validity of assignment
of the decree, it was submitted, that the same already stands
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upheld by the Executing Court and cannot be reopened. Thus,
supporting the impugned order, the learned counsel submitted
that, at this stage, when the decree has been fully executed and
finally satisfied which is also admitted by the petitioner himself, no
interference is warranted in exercise of writ jurisdiction. It was
further prayed that the present writ petition, along with the
pending two writ petitions, deserves to be dismissed as
infructuous.
8. Heard learned counsel for the parties, perused the material
available on record and the judgments cited at the bar.
9. As the challenge to the impugned order revolves around the
provisions of Section 28 of the Act, it becomes necessary to advert
to the said provision, which is reproduced for ready reference:
"28. Rescission in certain circumstances of contracts for the sale or
lease of immovable property, the specific performance of which has
been decreed.--
(1) Where in any suit a decree for specific performance of a
contract for the sale or lease of immovable property has been made
and the purchaser or lessee does not, within the period allowed by
the decree or such further period as the court may allow, pay the
purchase money or other sum which the court has ordered him to
pay, the vendor or lessor may apply in the same suit in which the
decree is made, to have the contract rescinded and on such
application 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.
(2) Where a contract is rescinded under sub-section (1), the court
(a) shall direct the purchaser or the lessee, if he has
obtained possession of the property under the contract, to
restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the
rents and profits which have accrued in respect of the
property from the date on which possession was so obtained
by the purchaser or lessee until restoration of possession to
the vendor or lessor, and if the justice of the case so
requires, the refund of any sum paid by the vendee or
lessee as earnest money or deposit in connection with the
contract.
(3) If the purchaser or lessee pays the purchase money or other
sum which he is ordered to pay under the decree within the period
referred to in sub-section (1), the court may, on application made
in the same suit, award the purchaser or lessee such further relief
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as he may be entitled to, including in appropriate cases all or any
of the following reliefs, namely:--
(a) the execution of a proper conveyance or lease by the
vendor or lessor;
(b) the delivery of possession, or partition and separate
possession, of the property on the execution of such
conveyance or lease....."
10. To properly appreciate the controversy, it is essential to
first consider the scope of the said provision. Under Section 28 of
the Act, the Court has been granted the power to rescind, in
certain circumstances, contract of sale or lease of immovable
property wherein decree for specific performance has been
passed. Section 28 finds place in Chapter-IV of the Act which
deals with rescission of contracts. It is well settled, as observed by
the Supreme court in Hungerford Investment Trust Ltd (in
voluntary liquidation) Vs. Haridas Mundhra & others
[(1972) 3 SCC 684], that after a decree for specific performance
has been passed, the Court retains control over the decree even
thereafter. The decree for specific performance is treated to be in
the nature of a preliminary decree. These powers have to be
exercised as "justice of the case may require", as stipulated in
Section 28 of the Act. As held in Rajinder Kumar Vs. Kuldeep
Singh & others [(2014) 15 SCC 529], the parties on
approaching the Court must get the feeling that justice has been
done in the facts and circumstances of the case. What is required
to be emphasized is the conferment of power to rescind contracts.
In other words, this power can be exercised only till the stage the
contract is executed. This view derives support from the
observations of the Hon'ble Supreme Court in Sardar Mohar
Singh through Power of Attorney Holder, Manjit Singh Vs.
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Mangilal alias Mangtya [(1997) 9 SCC 217] wherein, in Para 4
of said decision, it was observed thus:-
"4. From the language of sub-section (1) of Section 28, it
could be seen that the court does not lose its jurisdiction
after the grant of the decree for specific performance nor it
becomes functus officio. The very fact that Section 28 itself
gives power to grant order of rescission of the decree
would indicate that till the sale deed is executed in
execution of the decree, the trial court retains its power
and jurisdiction to deal with the decree of specific
performance. ....."
11. A pointed query was put to the learned counsel for the
petitioner regarding the execution of the decree. In reply, he fairly
conceded that the execution proceedings have already been
completed. It is, thus, clear that though after passing a decree for
specific performance, the Court does not become functus officio
and the power is so retained till the sale-deed is executed in
execution of the decree, but once such sale-deed is executed, the
contract stands completed on account of execution of the
document of conveyance and there remains nothing to be
rescinded.
12. The matter can be viewed from another angle.
Section 28 (2) of the said Act provides that if a contract is
rescinded, possession obtained under the contract is required to
be restored. On the other hand, if the purchaser is permitted to
pay the purchase money, then, as per Section 28 (3) of the said
Act, the vendor can be directed to execute a proper conveyance.
There is no power conferred to set aside or rescind the document
of conveyance in Section 28 of the said Act. The operation of
Section 28 of the said Act would, therefore, cease after execution
of the sale-deed. It is to be noted that after execution of the sale-
deed, the same would be required to be cancelled which relief
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could be sought under Chapter-V of the said Act which deals with
cancellation of instruments besides any other remedy available in
law.
13. The chronology of above facts clearly indicates that the
challenge as raised by the petitioner is principally on the aspect of
lack of diligence and delayed steps taken by the respondent no.1
to pay the balance amount of consideration pursuant to the decree
for specific performance. Though, it is true that the relief of
rescission of contract can be sought by a transferee pendente lite
and while deciding such application, the Court only decides
antecedent rights, the fact that such right of rescission is sought
to be exercised after execution of sale-deed in favour of the
original plaintiff is a fact fatal for the applicant.
14. In view of the whatever discussed above, it emerges from
the record that, notwithstanding the pendency of earlier writ
petitions, no interim order or stay was ever granted by this Court
restraining the Executing Court from proceeding with the
execution. It is also significant to note that no specific relief under
Section 28 of the Act was ever claimed by the petitioner in the
entire petition except for an oral prayer made during the course of
arguments. Consequently, the Executing Court proceeded to
ensure final satisfaction of the decree in accordance with Section
28 of the Act. During the course of hearing, both parties fairly
acknowledged that execution has been completed and possession
has been delivered pursuant to the impugned order. Thus, the
decree stands fully satisfied and nothing survives for adjudication.
Once the subject-matter of the writ petition stands concluded by
completion of execution, the proceedings are rendered
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infructuous. No ground exists for interference in exercise of
supervisory jurisdiction under Articles 226 and 227 of the
Constitution of India.
15. Accordingly, the present writ petition is dismissed as
rendered infructuous. The connected pending S.B. Civil Writ
Petition No.3961/2022 and S.B. Civil Writ Petition No.15791/2023
also stand disposed of as having rendered infructuous.
16. Stay petitions and pending applications, if any, also stand
disposed of.
(CHANDRA SHEKHAR SHARMA),J
41-43--Anill/-
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