Sageer And Others ......Revisionists vs Mumtaz And Others on 13 August, 2021

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Uttarakhand High Court

Sageer And Others ......Revisionists vs Mumtaz And Others on 13 August, 2021

Instant revision has been preferred against the order dated 27.11.2010, passed in Execution Case No. 3 of 2003, Mohd. Umar Vs. Mangta and others (for short, " the Execution Case") and Misc. Case No. 3 of 2008, Mumtaz and others Vs. Sageer and others (for short, "the Miscellaneous Case") by the court of Additional District Judge/1st Fast Track Court, Roorkee. By the impugned order, an application under Section 28 (3) of the Specific Relief Act, 1963 (for short, "the Act") filed by the decree holder in the Execution Case seeking extension of time to deposit the amount has been rejected. In the Execution Case, an application under Section 28 (1) of the Act was filed by the judgment debtor on the ground that since decree holder has not paid the amount within the stipulated time as directed by the decree, the decree stood rescinded. Based on this application, proceedings of the miscellaneous case was instituted and the application of the judgment debtor was allowed by the impugned order.

2. Heard learned counsel for the parties and perused the record.

3. A suit for specific performance was filed by Mohd. Umar, the predecessor-in-interest of the revisionists (hereinafter referred to as "the decree holder") against Mangta, the predecessor-in interest of the respondents (hereinafter referred to as "the judgment debtor) for specific performance of an agreement dated 04.03.1987, by which the judgment debtor had agreed to sell a property to the decree holder for Rs.55,000/-. The suit was registered as Original Suit No. 71 of 1989, Mohd. Umar Vs. Mangta (for short, "the suit") in the Court of Additional Civil Judge, Roorkee. It was decided ex parte on 08.05.1990. The judgment debtor was directed to execute the sale deed in favour of the decree holder within a month after taking Rs.10,000/- from the decree holder or else, the decree holder was given liberty to get the sale deed executed, with the help of the Court. The ex parte order dated 08.05.1990 was sought to be set aside under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short, "the Code") by the judgment debtor, but it was not allowed. The matter was agitated in appeal unsuccessfully.

4. The decree holder filed Execution Case. Initially, some objections under Section 47 of the Code were filed by the judgment debtor, which were initially accepted by the executing court, but subsequently, in the revision, it was set aside. The matter proceeded. In the Execution Case, the decree holder filed an application under Section 28 (3) of the Act, seeking time to deposit Rs.10,000/- in the court pursuant to the decree passed in the suit. By the impugned order, this application has been rejected.

5. In the Execution Case, the judgment debtor also filed an application under Section 28 (1) of the Act, on the ground that the decree holder had not paid the amount under decree to the judgment debtor even after 20 years of the decree. Hence, the contract has rescinded. This application of the judgment debtor was registered as the miscellaneous case and it was allowed.

6. Learned counsel for the revisionists would raise two arguments only, which are as hereunder:-

(i) The application under Section 28(1) of the Act cannot be entertained by the execution court. It can only be filed in the court which decided the suit. It is argued that since in the instant matter, the application under Section 28 (1) of the Act was filed in the execution court, hence, this is illegality and it vitiates the impugned order. In support of his contention, learned counsel placed reliance upon the judgment passed in the case of Ramankutty Guptan Vs. Avara, AIR 1994 SC 1619. In para 7 of the judgment, the Hon'ble Supreme Court held as hereunder:-

"7. The question then emerges is whether it should be on the original side or execution side. Section indicates that it should be "in the same suit". It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under S. 28 (1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed, namely, the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of accordingly to law. In this view, we feel that the judgment of the Bombay High Court laid down the law correctly and that of the Andhra Pradesh High Court is not correct. The High Court, therefore, is not right in dismissing the application treating it to be on execution side, instead of transferring it on the original side for dealing with it according to law."

(ii) The application under Section 28 (1) of the Act was filed beyond limitation, because in view of Section 137 of the Limitation Act, 1962 (for short, "the Limitation Act") in such cases, the limitation would be three years. In support of his contention, learned counsel has placed reliance in the case of Kantamaneni Venkateswara Rao Vs. Meka Ventateswara Rao, 1993 ALT 480. In this case, the Hon'ble Andhra Pradesh High Court, inter alia, held that 4 "the limitation for filing an application to have the contract rescinded is three years in view of Section 137 of the Limitation Act".

7. On the other hand, learned counsel for the judgment debtor would submit that the application under Section 28 (1) of the Act may be moved in the execution court which may then be transferred to the court which passed the decree. It is submitted that to cure this error, the matter may be remanded. But, the learned counsel for the judgment debtor would submit that the application under Section 28 (3) of the Act filed by the decree holder has also been dismissed and that order has not been challenged. Therefore, the decree has otherwise also become unexecutable. It is argued that in substance, no interference is warranted now.

8. In fact, the revisionists have challenged that part of the order only, by which, the application under Section 28 (1) of the Act filed by the judgment debtor was allowed. As noted, by the impugned order, the application filed under Section 28 (3) of the Act, filed by the decree holder has also been rejected, by which he wanted to get some time to deposit the amount as stipulated in the decree.

9. Section 28 of the Act is as hereunder:-

"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 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 lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and 5

(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 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.

(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.

(5) The costs of any proceedings under this section shall be in the discretion of the court."

10. A bare perusal of Section 28 (1) reveals that, in fact, the court after passing of decree for specific performance can still deal with such decree in terms of rescinding the contract or passing some order under Section 28 (3) of the Act.

11. In the case of Ramankutty (supra), the Hon'ble Supreme Court categorically held that if an application is filed under Section 28 (1) of the Act in execution court, it may be transferred to the court which passed the decree. It might also happen that the execution court and the court which passed the decree is one and the same court. In such cases, even if application under Section 28 (1) of the Act is filed in the execution side, it may very well be taken on the original side as a miscellaneous case and decided accordingly. In the instant case the suit was decreed by the court of Additional Civil Judge, where as the Execution Case was finally decided by the court of Additional District Judge/ Fast Track Court on 27.11.2010 (by the impugned order). On behalf of decree holder it is submitted that, in fact, initially, the Execution Case was filed in the court, which had passed the decree, 6 but subsequently, it was transferred to the court of Additional District Judge/Fast Track Court. Fact remains, application under Section 28 (1) of the Act was not filed in the court, which passed the decree.

12. The application filed under Section 28 (1) of the Act by the judgment debtor has been though marked as a miscellaneous case, but it was decided in the Execution Case. It has not been decided by the Court which passed decree. This is an irregularity. Definitely its effect will be seen at a later stage so as to quash the order or/and remand the matter further to pass any other order.

13. Argument have also been advanced with regard to the limitation. In the case of Kantameneni Venkateswara Rao (supra), the Hon'ble Andhra Pradesh High Court has categorically held that in such cases, the limitation shall be three years under Section 137 of the Limitation Act. The appeal filed by the judgment debtor was decided on 13.11.1992. Three years limitation, in any case, shall start from 13.11.1992, but application under Section 28 (1) of the Act was filed on 30.09.2008 i.e. almost after 16 years from the date of judgment in appeal. It is definitely time barred. It's effect is that the application under Section 28 (1) of the Act should have been rejected on the ground of limitation alone. On this ground the impugned order deserves to be set aside to the extent it allows application under Section 28 (1) of the Act filed by the judgment debtor.

14. The decree holder also moved an application under Section 28 (3) of the Act, seeking permission to deposit the amount under decree. The decree was passed on 08.05.1990, against which, an appeal was preferred along with challenging the order passed under Order 9 Rule 13 of the Code. It was decided on 13.11.1992 and the Execution Case was filed. This application under Section 28 (3) of the Act was filed by the decree holder on 02.02.2010. It is almost 18 years after the judgment was passed in the appeal. This permission was denied to the decree holder.

15. In the case of Prem Jeevan Vs. K.S. Venkata Raman and another, (2017) 11 SCC 57, in such a situation, the Hon'ble Supreme 7 Court held that even if the judgment debtor does not file any application under Section 28 (1) of the Act for rescission of the contract, the decree becomes unexecutable because of non performing the part by the decree holder. In para 10 of the judgment, the Hon'ble Court has observed as hereunder:-

"10. In the above circumstances, the contention advanced on behalf of the decree-holders, respondents herein, that unless the judgment-debtor seeks rescission of the contract in terms of Section 28 of the Specific Relief Act, the decree remains executable in spite of expiry of the period for deposit, with the only obligation on the part of the decree-holders to pay interest, cannot be accepted."

16. An application under Section 28 (3) of the Act may also be filed in the court which passed the decree. It has not been done in this case. Now, the fact remains that the decree holder did not deposit the money under decree within given time or he has not sought any extension of time for depositing the money under decree, from the court which passed the decree. The decree holder sought time from the execution court to deposit the money, which was rejected. Therefore, in view of the judgment in the case of Prem Jeevan (supra), the decree has become unexecutable.

17. This Court has also held that in the instant case, the application under Section 28 (1) of the Act has been decided by the execution court. It is irregularity because in view of the judgment in the case of Ramankutty (supra), in case the original court and execution court are same, the execution court would have taken the application on the original side and decide it. The miscellaneous application should have been decided in the suit. This irregularity could have been rectified by remanding the matter to the execution court, with the direction to transfer the application under Section 28 (1)of the Act to the court which passed the decree for decision in accordance with law but, it may not be done because the application itself is time barred. Therefore, the impugned order may be interfered with to the extent it allows application under Section 28 (1) of the Act filed by the judgment debtor. The application filed under Section 28 (1) of the Act, by the judgment debtor deserves to be rejected.

18. This Court has also held that the decree has become unexecutable because the decree holder did not deposit the amount under decree. Therefore, even after rejection of the application under Section 28 (1) of the Act filed by the judgment debtor, in substance, no change occurs. The decree remains unexecutable.

19. In view of the above, the Court concludes as hereunder:-

(1) Impugned order dated 27.11.2010 is set aside to the extent it allows application under Section 28 (1) of the Act filed by the judgment debtor. The application filed by the judgment debtor under Section 28 (1) of the Act is rejected.

(2) The decree passed in the suit still remains unexecutable because the decree holder did not deposit the amount under decree.

(3) The part of impugned order which rejects Execution Case is upheld.

(4) Instant revision is decided accordingly.

(Ravindra Maithani, J.) 13.08.2021 Jitendra 9

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Uttarakhand High Court