Punjab-Haryana High Court
Jai Dev vs Prem Singh Sanini on 18 December, 2000
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a civil revision and has been directed against the order dated 8.6.2000 passed by Addl. Civil Judge (Sr. Division), Pehowa, who dismissed the objections of the judgment-debtors (present petitioners) to the execution filed by the decree-holder.
2. Some facts can be noticed in the following manner :
Prem Singh plaintiff (decree-holder) filed a suit for possession by way of specific performance against Jai Dev and Rameshwar Dass of the property which is the subject matter of the head-note of the plaint. Notice of the suit was given to the defendants. The suit was hotly contested and vide judgment and decree dated 24.9.1999 it was decreed. It was mentioned in para No. 22 of the judgment as follows :-
"Sequel to the findings given in the issues above, the suit of the plaintiff for possession by way of specific performance of the agreement to sell dated 8.4.1994 Ex.P1 is decreed with costs of the proceedings of the case and the defendant No. 1, is directed to get the sale-deed executed and registered, in context of the suit property on the payment of the balance amount of sale consideration, within a period of three months from the date of the passing of this judgment, where out of the total sale consideration of Rs. 9 lacs the defendant No. 1 has already received earnest/advance money to the extent of Rs. 3,96,270/-. Decree-sheet be prepared and file be consigned to record-room."
3. This judgment and decree has not been challenged by the defendants either by way of appeal or revision in any competent Court of jurisdiction and it has become final. The decree-holder filed execution in the executing Court on 23.12.1999, though it was entered in the register on 6.1.2000. The judgment- debtors filed objections to the execution on the ground that the decree for specific performance was a conditional decree and by virtue of that decree the decree-holder was supposed to deposit the remaining sale consideration within three months, which has not been deposited and, therefore, this decree is nullity and is not executable as such.
4. The decree-holder filed an application on 22.3.2000 and requested the executing Court that he intended to deposit the balance sale consideration of Rs. 5,03,730/- as the judgment-debtors did not comply with the order of the Court within the stipulated period of three months from the date of the decree. On this request of the decree-holder, the executing Court allowed to deposit the money in the treasury on the same day. He even tendered the stamp paper charges and made prayer to the Court for appointment of Local Commissioner who will execute the sale-deed on behalf of the judgment-debtors in favour of the decree- holder.
5. Not satisfied with the dismissal of their objections, the present revision by the judgment-debtors.
6. This revision came up for hearing before me on 10.11.2000 and the learned counsel appearing on behalf of the petitioners submitted that the execution was filed after the expiry of three months from the date of the decree, i.e. on 24.9.1999, and, therefore, the application is liable to be dismissed.
7. I have heard Mr. G.S. Bhatia, Advocate for the petitioners. Mr. A.P. Bhandari, Advocate for the respondent and with their assistance have gone through the records of this case.
8. Order 20 Rule 12-A of the Code of Civil Procedure lays down "where a decree for the specific performance of a contract for the sale or lease of immovable property orders that the purchase money or other sum be paid by the purchaser or lessee, it shall specify the period within which the payment shall be made." The grouse of the petitioners is that since the decree was a conditional one and since the money has not been paid within three months from the date of the passing of the decree, therefore, the execution is liable to be dismissed, I am not in a position to subscribe to the contention of the learned counsel for the petitioners, Order 20 Rule 12A CPC is a procedural provision and this enjoins upon the Court to make an order when it wants to pass the orders that purchase money or other sum to be paid by the purchaser be paid within a specified period. A decree under Order 20 Rule 12A does not become a conditional one nor it was the intention of the trial Court when it passed the decree in this case. It has never stated in the order that if the decree-holder does not deposit the remaining sale consideration within three months, the suit of the plaintiff shall stand dismissed. In this case the decree holder filed the application for allowing him to deposit the amount. Under Section 148 CPC powers vest in the Court to allow such decree-holder to deposit the amount. This Section lays down as follows :-
"Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court, may in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired."
9. In this case it cannot be said that the decree-holder has no intention to purchase the property. He paid a sum of Rs. 3,96,270/- during the course of transaction and he was further to deposit a sum of Rs. 5,03,730/-. The execution was filed on 23.12.1999 within three months. The decree-holder made an application for deposit of the amount of balance sale consideration and that was allowed in the month of March, 2000. In this view of the matter, I do not see any illegality or impropriety in the impugned order.
10. Faced with this difficulty, the learned counsel for the petitioners has raised multifarious arguments. His first argument which was given to me at the time of motion hearing has already been falsified with the learned counsel for the decree-holder has successfully shown to me that execution was filed within three months from the passing of the decree. With the aid of the provision of Section 148 CPC I have tried to show above that the Court has the power to extend the lime and it could give time to the decree-holder for the deposit of the balance sale consideration. No case law has been shown to me by the learned counsel for the petitioners that if the amount is not deposited within three months as directed by the trial Court, the decree will become nullity.
11. The learned counsel for the petitioners relied upon V.S. Palanichamy Chettiar Firm v. C. Alagappan and another, 1999(1) Civil Court Cases 712:1999(1) RCR(Civil) 634 (SC). This judgment is totally distinguishable on facts. In the cited case the Court gave two months time to the decree-holder to deposit the balance sale consideration. The decree-holder never deposited the amount nor made any application for ex-tension of time within two months. The execution proceedings were initiated after 5 years of the decree and then the extension of time was sought. In the peculiar circumstances the Hon'ble Supreme Court was pleased to hold that no extension could be granted especially when no explanation was forthcoming as to why the balance sale consideration was not deposited as per decree. In the present case it is clear that the decree-holder filed the execution within three months from the passing of the decree. Moreover, the judgment-debtors at no point of time gave notice to the decree-holder that they were interested to execute the sale deed after receipt of balance sale consideration. In these circumstances, the decree-holder had to make the application before the executing Court and he sought the permission for the deposit of money. This act was done in March, 2000. There cannot be held any inordinate delay on the part of the decree- holder that he was not interested in the execution of the decree.
12. The learned counsel for the petitioners then referred to M. Sakuntala Devi v. Sakuntala and others, AIR 1975 Andhra Pradesh 337. This judgment is again distinguishable on facts. In the present case time was not the essence of the contract. Yet my attention was invited to Smt. Parmeshri v. Naurata, 1984(86) PLR 591. This judgment on the face of it is also distinguishable because in our case the decree was not a conditional one. No stipulation was imposed by the trial Court while decreeing the suit that in the case of non-deposit of the remaining sale consideration, the suit of the plaintiff will be liable to be dismissed.
13. On the contrary, the learned counsel for the respondent relies upon Yeshoda and another v. K. Nagarajan, 1996(II) Supreme Court 228 : 1997(1) RCR(Civil) 583 (SC). In this case the decree for specific performance was passed with the condition of payment of a further amount by the decree-holder. An application was filed by the judgment-debtor under Section 28 of the Specific Relief Act to rescind the decree on the ground of default. Then an application was filed by the decree-holder for extension of time for payment of the amount. The application for rescission of decree was dismissed and that for extension of time was allowed by the High Court. It was contended before the Hon'ble Supreme Court that the High Court had no power to enlarge time and the judgment-debtor had right to seek rescission of the decree. This contention was repelled and it was held by the Hon'ble Supreme Court that the Court had power under Section 148 CPC to enlarge the time and under the circumstances Court correctly exercised its discretion. I have already held above with the aid of Section 148 CPC that the executing Court had the power to extend the limitation.
In these circumstances, I do not see any merit in this revision and the same is hereby dismissed.
14. Revision dismissed.