Punjab-Haryana High Court
Bagga Singh vs Gurbaj Singh on 4 March, 2004
Equivalent citations: (2004)137PLR591
JUDGMENT M.M. Kumar, J.
1. (4th March, 2004) - This petition filed under Section 115 of the Code of Civil Procedure, 1908 challenges order dated 2.5.2003 passed by the executing Court namely Civil Judge (Jr. Division), Karnal, dismissing the application of the judgment debtor-petitioner under Section 28 of the Specific Relief Act, 1963 (for brevity 'the Act') for rescinding the agreement to sell dated 10.1.1992. It is appropriate to mention that vide judgment and decree dated 4.10.1997, the Civil Judge (Jr. Division), Karnal has decreed the suit filed by the decree holder-respondent Gurbaj Singh and a direction was issued to the judgment debtor-petitioner to get the sale deed registered and executed after receipt of the remaining sale consideration of Rs. 35,000/- within the time of two months. A prayer in the application was made by the judgment debtor that as the decree-holder respondent had failed to pay the balance sale consideration of Rs. 35,000/-the decree in question is liable to be rescinded. The application has been dismissed by the executing Court by holding that no fault could be attributed to the decree holder respondent as he had always been ready and willing to perform his part of the contract. It has been found that he issued a notice to the judgment debtor-petitioner through his counsel Shri D.C. Gupta to get the sale deed executed and registered after the receipt of the balance sale consideration of Rs. 35,000/-. The registered envelope had been returned back unserved and two reports have been made thereon. In the report dated 16.1.2003 it has been recorded that the judgment-debtor petitioner does not reside in Karnal and in-fact is residing at village Salaru. In the report dated 21.3.2003 it has been mentioned that the judgment debtor petitioner is not residing in village Salaru and is residing at Karnal. Both the reports apparently are contradictory to each other and intention of the judgment debtor-petitioner lies bare in these two reports. He wanted to defeat the execution of the decree by all means. On 27.1.2003 the decree holder-respondent appeared before the Sub Registrar, Karnal for execution and registration of the sale deed but the judgment debtor petitioner failed to turn up. His presence has been marked before the Sub-Registrar and his affidavit was also placed on the file. It is in these circumstances that the executing Court returned a firm finding that the decree holder has always been ready and willing to get the sale deed registered after making the payment of the balance sale consideration but the judgment debtor-petitioner has been delaying the matter on one pretext or the other. On the basis of the afire-mentioned findings, the executing Court dismissed the application and directed the judgment debtor-petitioner to get the sale deed registered and executed uptil 31.5.2003 after giving seven days registered notice to the decree holder-respondent depicting therein the time and place for registration of the sale deed.
2. After hearing the learned counsel for the parties and perusing the impugned order passed by the executing Court, I am of the considered opinion that this petition is liable to be dismissed. Firstly, the findings recorded by the executing Court make it evident that the decree holder-respondent is not at fault and he had made all efforts to perform his part of the duty within the period specified in the judgment and decree dated 4.10.1997. Moreover, it has been held that the Court which had passed the decree does not lose jurisdiction after the grant of decree for specific performance. The afore mentioned view has been taken by the Supreme Court in the case of Sardar Mohar Singh v. Mangilal, 1997(9) S.G.C. 217. The observations of their Lordship in this regard reads as under:
"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. It would also be clear that the court has power to enlarge the time in favour of the judgment debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment debtor and rejected. In other words, the court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. It is true that the respondent has not given satisfactory explanation of every day's delay. It is not, unlike Section 5 of the Limitation Act, an application for condonation of delay, it is one for extension of time. Under these circumstances, the executing Court as well as the High Court had exercised discretion and extended the time to comply with the conditional decree......."
3. When the principles laid down by the Supreme Court in the afore-mentioned case are applied to the facts of the present case no doubt is left that under Sub-section (1) of Section 28 of the Act the Court even otherwise is entitled to extend time and does not become functus officio. The observations of the Supreme Court goes to the extent of observing that every day's delay is not required to be explained. The case in hand is on a better footing because the executing Court on facts had categorically found that the decree holder-respondent has been making all efforts to get the decree executed but the judgment debtor-petitioner is avoiding the same. The observations of the Supreme Court, therefore, would apply even with more force to the instant case. Therefore, there is no merit in this petition and the same is liable to be dismissed.
For the reasons recorded above, the petition fails and the same is dismissed.