P.Satyender vs Syed Mohammand Abdul Quadeer And ...
2022 Latest Caselaw 3690 Tel

Citation : 2022 Latest Caselaw 3690 Tel
Judgement Date : 14 July, 2022

Telangana High Court

P.Satyender vs Syed Mohammand Abdul Quadeer And ... on 14 July, 2022

Bench: P.Sree Sudha

              THE HON'BLE SMT. JUSTICE P. SREE SUDHA

              CIVIL REVISION PETITION No.490 of 2020

ORDER :

Heard the arguments of learned counsel appearing

for the petitioner. In spite of service of notice, the

respondents have not turned up.

This Civil Revision Petition is filed against the order

dated 20.03.2018 passed in E.P.No.20 of 2017 in O.S.No.40 of

2006 by the Senior Civil Judge, Sangareddy, which reads as

follows :-.

"Fair sale deed is filed by engrafting the same on Non Judicial Stamp worth of Rs.100/- and the same is sent to Joint Sub-Registrar, Sangareddy for registration. Hence, this execution petition is closed."

Learned counsel appearing for the petitioner stated

that the revision petitioner, who is the 5th defendant in the

Suit, is a bonafide purchaser and he is still in possession of

the suit schedule land. He also stated that the stay in

A.S.No.157 of 2011 is subsisting for a limited period. The 1st

respondent herein filed O.S.No.40 of 2006 for specific

performance of suit agreement dated 05.09.2005 and the

same was decreed on 30.06.2010 by observing as follows :-

"In the result, the suit of the plaintiff is decreed with costs and first defendant is directed to execute registered sale deed within three months hereof in favour of the plaintiff in respect of the suit schedule property by receiving balance sale consideration and also the defendant No.5 shall deliver possession of the suit schedule property to the plaintiff. If the defendants failed to comply the same, the plaintiff is entitled for getting sale deed executed and delivery of possession of suit land by due process of law through court."

Learned counsel for the petitioner further stated that

E.P.No.20 of 2017 was filed in December, 2016, in which it

was specifically stated that judgment debtors 6 to 11, who

are the legal heirs of judgment debtor No.1, may be

directed to execute a registered Sale Deed in favour of the

plaintiff by receiving balance sale consideration. As per the

docket proceedings dated 19.01.2017, it was returned for

compliance. On 16.02.2017, it was resubmitted along with a

petition to enlarge time. On 14.03.2017, the balance sale

consideration was paid.

Learned counsel appearing for the petitioner relied

upon a decision reported in SUGGULA VENKATA

SUBRAHMANYAM AND OTHERS Vs. DESU VENKATA RAMA

RAO1, wherein this Court held as follows :-

"It is relevant to note that under Section 28(1) of the Act of 1963, it was open to the decree holder to seek enlargement of the time for paying the purchase money.

However, no such steps were taken. It was only in the year 2000, six years after the decree that the decree holder straightaway initiated execution proceedings by filing E.P.No.70 of 2000. Though Section 28(3) of the Act of 1963 provides for an application being made in the same suit by the purchaser for obtaining specific performance pursuant to the decree, Order XXI Rule 32(5) CPC continues to remain on the statute book. Therefore, an execution petition for obtaining specific performance pursuant to a decree cannot be said to be maintainable. The finding of the executing Court that E.P.No.70 of 2000 was maintainable having been filed within 12 years after the decree is therefore unassailable. However, the approach of the executing Court in holding that the execution petition should be ordred automatically as it was filed within time i.e., within 12 years from the date of the decree, is incorrect. When the decree

1 2010 (5) ALD 807

dated 14.07.1994 specifically stipulated a three month time period and there was no petition seeking enlargement of that time it is perverse on the part of the executing Court to order the execution petition without considering whether it was filed within 'reasonable time'. All the more so, when the decree holder did not deny the fact that the balance sale consideration had not been deposited within the time stipulated, which would be a condition precedent for obtaining the sale deed in terms of the agreement of sale dated 19.10.1987......".

Learned counsel for the petitioner also relied upon

a decision of the Hon'ble Apex Court in PREM JEEVAN

Vs. K.S.VENKATA RAMAN AND ANOTHER2, in which it was

held that when DHR has not deposited the decretal

amount and not sought for extension and he has not

explained the delay in making the deposit, it cannot be

said that there is automatic grant of extension of time.

Learned counsel appearing for the petitioner also

relied upon Section 3(1) of the Limitation Act, which

reads as follows :-

222 (2017) 11 Supreme Court Cases 57,

"Bar of Limitation-(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."

He further stated that the E.P. was filed beyond

limitation and therefore, it is not maintainable. Hence, the

impugned order is liable to be set aside.

In the case on hand, the suit was disposed of on

30.06.2010 with a direction to deposit the amount within

three months, but the E.P. was filed in the month of

December, 2016 i.e., after more than six years without filing

an application for enlargement of time for deposit of the

amount and no notice was served upon the 5th defendant

in the E.P. The Executing Court without considering the fact

whether the E.P. was filed within the limitation period,

passed the impugned order and the same is patently illegal.