Punjab-Haryana High Court
Smt. Rajinder Kaur vs S.K. Malhotra on 19 August, 1999
Equivalent citations: AIR2000P&H63, (2000)124PLR316, AIR 2000 PUNJAB AND HARYANA 63, 1999 HRR 566, (2000) 2 CIVILCOURTC 51, (2000) 124 PUN LR 316, (1999) 4 RECCIVR 629, (2000) 1 ICC 185, (2000) 1 CIVLJ 514
ORDER N.K. Agrawal, J.
1. This is a revision petition by the defendant judgment-debtor against the order dated November 13, 1998 passed by the Civil Judge (Senior Division), Jalandhar, whereby the objection petition filed by the judgment debtor in the execution proceeding has been dismissed.
2. The plaintiff/decree holder had filed a suit for specific performance of contract dated December 8, 1983, The suit was decreed on December 24, 1987. The defendant/judgment debtor was directed to get the sale deed of the suit property executed from the Improvement Trust, Jalandhar in her favour within six months and also to obtain an Income tax Clearance Certificate. The defendant was thereafter required to execute a sale deed in favour of the plaintiff in terms of the contract, The plaintiff was directed to deposit in the Court the balance sale consideration of Rs. 1,30,000/- within six months "failing which his suit shall be deemed to have been dismissed ab initio."
3. Operative part of the order of the learned Senior Sub Judge reads as under :-
"In the result, this suit is decreed with costs in favour of the plaintiff and against the defendant. The defendant is directed to get the sale deed of the suit property executed and registered from the Jullundur Improvement Trust in her favour within six months. She is also directed to obtain the income tax clearance certificate from the Income-tax Department within six months and thereafter to execute and register the sale deed in favour of the plaintiff in terms of the agreement Ex. P. 1. The plaintiff is directed to deposit in Court, the balance sale consideration of Rs. 1,30,000/- within six months failing which his suit shall be deemed to have been dismissed ab initio. Conveyance charges shall be borne by the plaintiff. If the defendant fails to comply with these directions, then the plaintiff would be at liberty to get the sale deed executed and registered in his name in terms of this decree through the agency of the Court. After the sale deed has been executed and registered in terms of this decree, the balance sale price of Rs. 1,30,000/- after deducting from it, costs of the suit and such other expenses and charges as directed by the Court, shall be paid to the defendant. But, if she does not obtain the Income tax Clearance Certificate, then the balance sale price shall remain deposited in the Court and shall be at disposal of the income tax authority to be disposed of under their directions, subject to the taxation liability of the defendant. Decree be drawn. File be consigned.
4. Defendant filed an appeal against the order of the learned Sub Judge before the District Judge. An application under Older 41, Rule 5 read with Section 151, Civil Procedure Code, was also filed by the defendant for staying the execution of the decree. The District Judge vide order dated February 12, 1988 stayed the execution of the decree of the trial Court subject to the condition that the defendant shall furnish a security within one month to the satisfaction of the Executing Court. The order reads as under :--
"Heard. Appeal is admitted. It be registered. Notice to the respondents be issued for 6-4-1988. Record be summoned.
Notice of the stay application be also issued to the respondents for the date fixed. The execution will stand stayed if the appellant furnishes security in the executing court undertaking to perform the decree. Security be furnished within one month to the satisfaction of the Executing Court."
The defendant, however, failed to furnish the requisite security. The defendant's appeal was dismissed with costs by the District Judge on March 11, 1995.
5. Learned counsel for the petitioner/ judgment-debtor has argued that the plaintiffs suit stood dismissed automatically in the light of the peremptory order. The trial Court had passed a clear order that the suit shall be deemed to have been dismissed ab initio if the plaintiff failed to deposit in Court, the balance sale consideration of Rs. 1,30,000/- within six months. The trial Court did not have any power to grant an extension in the light of the peremptory order passed by it. The learned counsel has argued that the judgment-debtor in his objection petition rightly took the plea that the decree was not executable as the decree-holder had failed to deposit the money in time as ordered by the trial Court. Further, the suit property remained with the Improvement Trust, Jalandhar. The judgment-debtor did not execute the sale deed in favour of the plaintiff/decree-holder for two reasons: one, the contract stood rescinded due to the non-deposit of the balance sale price by the decree-holder and, secondly, because the Improvement Trust, Jalandhar, declined to execute a sale deed in favour of the judgment-debtor on the ground that it was not a party to the suit and the trial Court's decree was not binding on the Improvement Trust.
6. Learned counsel for the petitioner/ judgment-debtor has placed reliance on a decision of this Court in the case of Harbans Singh Grewal v. Puran Singh (deceased) by his L. Rs., 1990 Pun LJ 400. It has been held therein that the Court can extend the time granted in the decree having resort to the provisions of Section 148, Civil Procedure Code, if there was no direction in the decree that on failure to deposit the amount within the specified time, the suit shall be deemed to have been dismissed. Similar view has been taken in Mohinder Singh v. Gurdial Singh, 1997(2) Pun LJ 247 : (1997 AIHC, 1344). It has been held therein that where the Court, while granting a decree for specific performance, imposed a condition on the plaintiff/decree-holder for the payment of the sale consideration within a prescribed time but without imposing any peremptory condition which, in the event of default, shall follow by automatic dismissal of suit, the Court had the power to extend the time under Section 148, Civil Procedure Code.
7. Learned counsel for the petitioner/ judgment-debtor has argued that in the light of the view taken by this Court in the aforesaid two decisions, the trial Court having passed a peremptory order became functus officio. It had no jurisdiction to extend the time for the deposit of the balance sale consideration. Since the decree-holder did not deposit the money within the period of six months as laid down by the trial Court in its peremptory order, the decree automatically became inexecutable. The decree-holder was bound to deposit the money in view of the unambiguous peremptory order.
8. The decree-holder took the plea before the Executing Court that in the appeal filed by the judgment-debtor, the appellate Court had stayed the operation of the judgment and decree of the trial Court on February 12, 1988. The appeal was dismissed on March 11, 1995. The appellate Court, while dismissing the appeal, granted three months time to the decree-holder to deposit the balance sale consideration amounting to Rs. 1,30,000/- in accordance with the terms of the agreement. The decree-holder deposited the balance sale price within three months from the date of the judgment and decree of the appellate Court. The plea that the decree-holder had not deposited the balance sale price within the stipulated period of six months and, therefore, the decree had become inexecutable, is to be rejected. This plea was also raised in appeal before the appellate Court but the same had been rejected after consideration. The learned counsel has contended that the judgment-debtor could not raise the same plea again before the Executing Court. The appellate Court not only rejected the argument about the non-deposit of money within time but also granted three months time to the decree-holder to deposit the money. The judgment-debtor never moved the trial Court for rescinding the contract on account of non-deposit of money. The decree-holder was not required to deposit the balance money after the decree of the trial Court was stayed by the appellate Court. The peremptory order became inoperative and unenforceable after it was stayed by the appellate Court. The stay order dated February 12, 1988 passed by the appellate Court was not challenged by any party. It remained in operation till the final disposal of the appeal on March 11, 1995. The learned counsel has further pointed out that the defendant came in further appeal (R. S. A. No. 1578 of 1995) before the High Court but that was also dismissed by order dated July 18, 1995. No point regarding the non-deposit of the balance money by the decree-holder within six months was raised before the High Court during arguments. The appeal was dismissed in limine. The Special Leave to Appeal Petition (SLP) filed by the defendant is also stated to have been dismissed by the Supreme Court. Thus, the question of non-deposit of the balance sale price cannot be now raised in the Executing Court.
9. The operative part of the judgment of the District Judge dated March 11, 1995 in the defendant's appeal reads as under :--
The upshot is that the appeal has no merit in it and so the same is dismissed with costs. The appellant/defendant is directed to execute the sale-deed in favour of the respondent/plaintiff within three months from today on deposit of the remaining sale consideration of Rs. 1,30,000/- in accordance with the terms of the agreement after obtaining the sale deed in her favour from the jalandhar Improvement Trust and the income-tax clearance, if necessary, from the Income-Tax Departments If she fails to do so within the stipulated period, the respondent/plaintiff will be entitled to get the sale deed executed through the process of the court. Decree sheet be prepared.
10. On a consideration of the matter, it is found that the plea now being raised by the judgment-debtor regarding the non-deposit of the balance sale consideration has been examined by the appellate Court but has been rejected. The defendant came in appeal not only to this Court but also went in further appeal to the Supreme Court. He, however, failed. He cannot now raise the same objection. Further, the appellate Court had stayed the operation of the judgment and decree of the trial court after the appeal was filed by the defendant. The stay order dated February 12, 1988 created a cloud on the decree of the trial Court. There is nothing to show that the trial Court's decree was only partly stayed. The decree-holder was, therefore, under no obligation to deposit the balance money within the given time after the execution of the decree of the trial Court was stayed by the appellate Court. It is not disputed that the appellate Court had the power to stay the execution of the decree of the trial Court. The period of six months stopped running as soon as the stay order was passed by the appellate Court. It again started running from the day on which the appeal was dismissed by the appellate Court. But now the stipulated period was different. It was three months from the date of the appellate order. The balance money has been deposited by the decree-holder within the period of three months as stipulated by the appellate Court in its decree.
11. The doctrine of merger is also attracted in the present case. Once the appellate Court decides the appeal, the judgment and decree of the trial Court merges into the appellate Court's decree. The peremptory order thus merged into the fresh order whereby the decree-holder was granted three months time to deposit the balance sale consideration.
12. In Gurdit Singh v. Jagjit Singh, (1987) 91 Pun LR 129, it has been held that where the trial Court did not fix the time within which the decree-holder was to deposit the purchase money and appeal was thereafter decided, the only executable decree would be that of the appellate Court.
13. In Jai Singh v. Puran Singh, 1990 (2) 98 Pun LR 569, similar view has been taken. The facts were like this: Two months time was allowed by the trial Court for the deposit of the sale consideration. An appeal was filed by the judgment-debtor which was dismissed. During the pendency of the appeal, an order was obtained staying the dispossession. At the time of the dismissal of the appeal, no time was allowed to the plaintiff to deposit the remaining sale consideration. Application under Section 148 read with Section 151, Civil Procedure Code, was filed before the Additional District Judge, who permitted the decree-holder to deposit the remaining sale consideration within one month. On the facts of that case, the order of the Additional District Judge was upheld.
14. In Dattatraya v. Shaikh Mehaboob Shaikh Ali AIR 1970 SC 750, it has been held by the Supreme Court that where a decree Imposed obligations on both sides and obligations are so conditioned that the performance by one is conditional on the performance by the other, the obligations are reciprocal and are inter-linked so that they cannot be separated. If the defendants, by obtaining the stay order from the High Court, relieve themselves of the obligations to deliver possession of the properties, the plaintiff/decree-holder must also be deemed thereby to be relieved of the necessity on depositing the money so long as the stay order continues.
15. It is thus clear that the appellate Court by staying the decree of the trial Court had, in fact, absolved the decree-holder of the liability to deposit the balance sale consideration within six months. The trial Court had passed the peremptory order on December 24, 1987. The period of six months was to expire on June 23, 1988. The decree of the trial Court was stayed by the appellate Court by order dated February 12, 1988. As the order of the trial Court came to be stayed before the expiry of six months, the decree-holder was no more required to deposit the balance sale consideration. The time stopped running as soon as the decree of the trial Court was stayed. It is not disputed that the appellate Court had the authority and jurisdiction to interfere in a matter where the trial Court passed a peremptory order. Therefore, the stay order dated February 12, 1988 passed by the appellate Court put the peremptory order under suspension. The appellate Court had all the powers to pass fresh orders regarding the deposit of the balance sale consideration. It granted three months time. The decree-holder deposited the balance sale consideration within the time granted by the appellate Court.
16. In the result, the revision petition has no merit. It is, therefore, dismissed. No costs.