Bhim Son Of Joga Ram vs Deshraj And Others on 16 November, 2009

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Punjab-Haryana High Court

Bhim Son Of Joga Ram vs Deshraj And Others on 16 November, 2009

Bench: K. Kannan

C.R. No.2523 of 2008                                        -1-

     IN THE HIGH COURT FOR THE STATES OF PUNJAB
             AND HARYANA AT CHANDIGARH

                              C.R. No.2523 of 2008 (O&M)
                              Date of Decision: 16.11.2009


Bhim son of Joga Ram                             .....Petitioner

                               Versus


Deshraj and others                               ....Respondents


Present: Mr. C.B. Goel, Advocate with
         Mr. Nitin Jain, Advocate and
         Mr. Harsh Aggarwal, Advocate
         for the petitioner.

         None for the respondents.

CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the
    judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
                               -.-
K. KANNAN J.(ORAL)

1. The revision is against the order rejecting execution application filed at the instance of the decree holder. The suit had been filed for specific performance of an agreement of sale dated 21.02.1979. The suit had been originally dismissed on 15.03.1982 and the decision was set aside in appeal allowing the claim of the plaintiff and granting the plaintiff to be entitled to a decree for specific performance. The Appellate Court decree merely provided as follows:

"It is ordered that the appeal is accepted. The judgment C.R. No.2523 of 2008 -2- and decree passed by the trial Court are set aside and in its place, I pass a decree for possession by way of specific performance of any agreement to sell in favour of the plaintiff/appellant and against the defendants No.1 to 3. Defendants are directed to execute the sale deed within a period of one month, failing which the plaintiff will have to apply for getting the sale deed executed within the next two months, his suit shall stand dismissed. The plaintiff to get the costs throughout."

2. It must be noticed that the decree itself does not specify any time for making the payment but states that the plaintiff will be entitled to apply for getting the sale deed executed within the next two months. The judgment and decree were dated 20.05.1983 and execution petition was filed within the time so specified namely on 16.07.1983.

3. It appears that a Regular Second Appeal had been filed by the judgment debtor in RSA No.1593 of 1983. It was dismissed on 27.10.2003 and the Special Leave Petition to the Hon'ble Supreme Court had also failed by its dismissal on 13.08.2004. Neither in the High Court nor in the Hon'ble Supreme Court were there any specific directions for deposit of amount. The decree holder has, under these circumstances, deposited the amount on 11.01.2005 and has levied execution for obtaining a sale deed from the judgment debtor. The judgment C.R. No.2523 of 2008 -3- debtor had not even filed any application under Section 28 of Specific Relief Act for rescission of contract. The Executing Court, however, has upheld the objection taken by the judgment debtor that since the balance of sale consideration was not deposited within time, the decree holder cannot avail of the benefit of the decree. The decision of the Court below is clearly erroneous. It has been held authoritatively by several judgments that the rights secured in judgment and decree cannot be easily whittled away and the Courts shall always be liberal in their approach to condone the delay, if there is ever a delay and if reasons are adduced for the delay. In this case, the question of finding that the decree holder is guilty of any delay or laches does not arise since the decree, which I have extracted above does not stipulate any particular time before when the amount was to be paid. The question would be then whether there is any conduct that could be attributed to decree holder that may lead to an inference that the decree holder has waived his right. The SLP was disposed of on 13.08.2004 and the amount has been deposited on 11.01.2005. There can hardly be said to be any delay in such a process. We have also noticed that the execution petition for obtaining a sale deed had been filed on 16.07.1983, within the time specified in the Appellate Court decree, but the further proceedings did not ensue only on account of institution of a Regular Second Appeal by the judgment debtor and by the C.R. No.2523 of 2008 -4- operation of the order of stay.

4. The order of the lower Court is set aside and the civil revision is allowed. The decree holder shall be entitled to enforcement of the decree in accordance with law.

(K. KANNAN) JUDGE November 16, 2009 Pankaj*

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