Punjab-Haryana High Court
Gurmail Singh vs Gurmail Singh on 25 February, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
CR No.5568 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CIVIL REVISION NO.5568 OF 2009
DATE OF DECISION: FABRUARY 25, 2012
Gurmail Singh
.... Petitioner
Versus
Gurmail Singh
.... Respondent
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
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PRESENT: None for the petitioner.
Mr. Kashmir Singh, Advocate the for respondent.
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L.N. MITTAL, J. (ORAL)
At the outset, it has to be noticed that name of both the decree holder as well as the judgment debtor is Gurmail Singh, although their fathers' names are different i.e. decree holder-respondent Gurmail Singh is son of Jangir Singh whereas judgment debtor-petitioner Gurmail Singh is son of Kartar Singh.
By this common judgment, I am disposing of two revision petitions i.e. Civil Revision No.5568 of 2009 and Civil Revision No.1995 of 2010, both titled Gurmail Singh-JD versus Gurmail Singh-DH as both revision petitions have arisen out of single execution petition.
Suit of decree holder (DH)-respondent for possession of suit land by specific performance of agreement to sell and also for permanent injunction, was decreed by the trial Court vide judgment and decree dated 19.01.2008 directing the judgment debtor (JD)-petitioner to get the sale deed CR No.5568 of 2009 -2- executed and registered in favour of DH and if the JD failed to execute the sale deed as per agreement within three months from the date of judgment, the DH shall be entitled to get the sale deed executed through the process of Court.
First appeal preferred by defendant-JD against judgment and decree of the trial Court was dismissed by the first appellate Court vide judgment and decree dated 22.09.2008. Thereafter DH filed execution petition on 21.10.2008. Notice of the execution petition was issued to JD. However, JD failed to appear and was proceeded ex parte on 15.11.2008. On the next date of hearing i.e. on 03.01.2009, DH moved application for extension of time to deposit the sale consideration. The said application was resisted by JD who also moved application for rescission of the agreement under Section 28 of the Specific Relief Act, 1963. It was alleged that the DH did not deposit the sale consideration in time and there is no ground for extension of time to deposit the sale consideration. DH filed reply to the application of JD for rescission of contract, opposing the same. Learned executing Court i.e. learned Civil Judge (Junior Division), Nabha vide impugned order dated 24.08.2009 allowed the application of DH and directed him to deposit the balance sale consideration within one month. The said order is under challenge in CR No.5568 of 2009 filed under Article 227 of the Constitution of India.
Pursuant to order dated 24.08.2009, DH deposited the balance sale consideration in time. Thereafter executing Court appointed Local Commissioner who executed the sale deed as per agreement in favour of DH. JD filed objections alleging that the sale consideration was not deposited in time. Notice of draft sale deed was not served on the JD. Local Commissioner was not authorized to withdraw stamp papers for executing the sale deed or to present the sale deed for registration. DH, by filing reply, resisted the CR No.5568 of 2009 -3- aforesaid objections preferred by JD. Learned executing Court vide impugned order dated 16.03.2010 dismissed the aforesaid objections of JD who has filed CR No.1995 of 2010 under Article 227 of the Constitution of India to challenge the said order.
These cases were earlier taken up today before lunch break when Mr. Vishal Aggarwal, Advocate was present for the petitioner. He sought adjournment for addressing arguments but since the revision petitions are pending since long and last opportunity has already been granted for today, prayer for adjournment was declined. The cases were passed over for some time to enable the counsel for the petitioner to assist this Court. After lunch break, cases have been taken up three times but none has appeared for the petitioner. This conduct of counsel for the petitioner in now not appearing in the Court at all, is strongly deprecated. Since these are revision petitions, these are not required to be dismissed for non-prosecution due to absence of counsel for the petitioner. Accordingly I proceeded to dispose of the revision petitions.
I have heard learned counsel for the respondent and perused the case files.
Insofar as Civil Revision No.5568 of 2009 is concerned, the trial Court while passing judgment and decree dated 19.01.2008 did not direct the DH to deposit the sale consideration within three months of date of said judgment and decree. On the contrary, it was directed that if the JD failed to execute the sale deed within three months from the date of judgment, then the DH would be entitled to get the sale deed executed through the process of the Court. However, there is no direction in the judgment and decree that DH was to deposit the sale consideration within three months. In fact, there could be CR No.5568 of 2009 -4- no such direction because the question of depositing the sale consideration in Court would have arisen only after failure of the JD to execute the sale deed within three months of the judgment and decree of the trial Court. Relief granted by the trial Court in judgment and decree dated 19.01.2008 is reproduced hereunder for proper and better appreciation of the aforesaid conclusion:
"In view of my foregoing discussion, the suit of the plaintiff succeeds and is hereby decreed against the defendant for possession by way of specific performance of the agreement to sell dated 30.12.2003, directing the defendant to get the sale deed executed and registered in favour of the plaintiff in respect of the land as fully detailed in the head note of the plaint and further restraining the defendant from alienating, selling, transferring, mortgaging or disposing of the said land to any body else, except to the plaintiff. If the defendant failed to execute the sale deed as per the agreement Ex.P1 in favour of the plaintiff within three months from the date of decision then the plaintiff is entitled to get the sale deed executed through the process of the Court. Decree sheet be prepared. File be consigned.
A bare perusal of the aforesaid operative part of judgment and decree of the trial Court makes it abundantly clear that DH was not required to deposit the sale consideration in Court at all, much less within three months of the date of judgment and decree of the trial Court. On the other hand, first appeal preferred by JD against judgment and decree of the trial Court was dismissed on 22.09.2008 and DH filed execution petition within one month thereof on 21.10.2008. Further JD was proceeded ex parte on 15.11.2008. DH moved application on next date of hearing i.e. on 03.01.2009 for time to CR No.5568 of 2009 -5- deposit the sale consideration. Consequently there was no occasion for the executing Court for not permitting the DH to deposit the sale consideration when there was no direction in the judgment and decree to deposit the sale consideration in Court, much less to deposit the same within some specified period. Impugned order dated 24.08.2009 of the executing Court, therefore, does not suffer from any infirmity, much less perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. Civil Revision No.5568 of 2009 is thus bereft of any merit.
Now coming to Civil Revision No.1995 of 2010, since the DH deposited the sale consideration within time stipulated in order dated 24.08.2009, it cannot be said that the sale consideration was not deposited in time. As regards service of notice of draft sale deed, JD was appearing in the executing Court when application for extension of time to deposit the sale consideration moved by DH was under consideration of the executing Court. Draft sale deed had already been filed on 03.01.2009. Consequently, separate notice of draft sale deed was not required to be given.
As regards authority of Local Commissioner to purchase stamp papers for the sale deed and to present the sale deed for registration, when the executing Court appointed the Local Commissioner to execute the sale deed in terms of decree, it included authority of the local Commissioner to do all acts necessary for execution of the sale deed in terms of the decree. Consequently authority of the Local Commissioner also included power to purchase stamp papers for the sale deed and power to present the sale deed for registration. Consequently objections preferred by the JD have been rightly dismissed by the executing Court vide impugned order dated 16.03.2010. The said order CR No.5568 of 2009 -6- does not suffer from any infirmity, illegality or jurisdictional error warranting interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India.
Accordingly both the revisions are found to be meritless and are, therefore, dismissed.
(L. N. MITTAL) JUDGE 25.02.2012 'raj'