Andhra HC (Pre-Telangana)
K.C. Balasubramanyam Pillai vs Bodireddygari Ramakrishna Reddy on 20 January, 2004
Equivalent citations: 2004(3)ALD531, 2004(2)ALT434
ORDER P.S. Narayana, J.
1. Bodireddygari Ramakrishna Reddy, respondent in this CRP, moved an application in CMP No. 27893 of 2003 to vacate the stay granted in CMP No. 20989 of 2003 in CRP No. 4625 of 2003, dated 14-11-2003. At the stage of hearing of the vacate application, Sri C.M.R.Velu, learned Counsel representing the vacate petitioner-respondent in the CRP and Sri Krishnan, learned Counsel representing Sri K.S. Gopalakrishnan, learned Counsel for the revision petitioner had made a request to dispose of the main C.R.P itself, and that is how, with the consent of the parties the main CRP is being disposed of.
2. K.C. Balasubramanyam Pillai, the revision petitioner, is the petitioner in EA No. 67 of 2003 and judgment-debtor in O.E.P. No. 20 of 2002 and defendant in O.S. No. 46 of 1992, on the file of Senior Civil Judge, Puttur, The said K.C. Balasubramanyam Pillai, moved the aforesaid application in E.A, No. 67 of 2003 under Section 28 of the Specific Relief Act, 1963 (for short 'the Act'), for rescission of contract of sale, dated 22-2-1991, and the learned Senior Civil Judge, Puttur, after recording reasons had arrived at a conclusion that the application is not maintainable and had dismissed the same. Aggrieved by the said order, the present CRP is filed.
3. Sri Krishnan, learned Counsel representing the revision petitioner had explained the inordinate delay and submitted that after a lapse of more than nine years the respondent-decree-holder cannot put the decree into execution, since, definitely, it would not be putting the decree into execution within reasonable time. The learned Counsel also while elaborating the submissions had pointed out that, in fact, there is steep rise of prices and at this point of time if the respondent-decree-holder is permitted to proceed with the execution of the decree for specific performance, the revision petitioner-judgment-debtor would be put to serious loss. The learned Counsel also contended that when a decree for specific performance is put into execution, such objection can be taken even before the Executing Court and necessarily an application need not be moved on the original side only. The learned Counsel also submitted that even on the applicability of the provisions of the Limitation Act, 1963, the learned Senior Civil Judge, Puttur, had not properly appreciated the different provisions of the said Act and had arrived at a wrong conclusion. The learned Counsel also would maintain that under the agreement of sale, an amount of Rs. 5,000/- alone had been paid and the rest of the amount was not paid. Though respondent-decree-holder obtained the decree on 30-l 1-1992, and after a long lapse of time, now the said decree-holder wants to further proceed with the execution of the decree, which would be definitely unjustified even on the ground of equity. The learned Counsel had placed strong reliance on a decision of the Apex Court reported in H.I. Trust Limited v. Haridas Mundhra, AIR 1972 SC 1826.
4. Per contra, Sri C.M.R. Velu, learned Counsel representing the respondent-decree-holder, had taken this Court through the reasons recorded by the learned Senior Civil Judge, Puttur, and had submitted that the learned Judge had arrived at the correct conclusion relating to the maintainability of the application on execution side. The learned Counsel also had placed strong reliance on the judgment-reported in Ramankutty Guptan v. Avara, , in this regard. The learned Counsel also would maintain that a decree whether it is an ex parte decree or a decree on merits, cannot be challenged at this distant point of time especially, in the light of the fact that an abortive attempt was made by the judgment- debtor to get the decree set aside and had left the matter there, and further the judgment-debtor had slept over the matter having not invoked the remedy available to him in law within the period of limitation and hence, such party cannot be permitted to raise all other grounds touching the merits and demerits of the matter, which would be available only in the original suit and not subsequent thereto after the suit had resulted in a decree. The learned Counsel also had placed strong reliance on the judgments of this Court and the Apex Court reported in B. Sambasiva Reddy v. K. Kondanna, 1996 (3) ALD 918 = 1996 (2) APLJ 426 (HC); Rafique Bibi (D) by LRs. v. Sayed Waliuddin (D) by LRs., 2003 (6) SC 300; Ravinder Kaur v. Ashok Kumar, 2003 (7) SC 365 and Kantamaneni Venkateswara Rao v. Meka Venkateswara Rao, . The learned Counsel ultimately had concluded that at any rate, this remedy prayed for by the revision petitioner on the execution side definitely is a misconceived remedy and hence, the C.R.P is liable to be dismissed.
5. Heard both the Counsel.
6. Section 28(1) of the Act, dealing with the rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed, reads as hereunder.
"Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the 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".
7. The words "the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded" assume importance.
8. In Ramankutty Guptan v. Avara (supra) the Apex Court held as under:
"Where the question is whether application under Section 28(1) for rescission of contract, specific performance of which had been decreed should be on the original side or execution side and 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 is open to the Court to exercise the power under Section 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Therefore, where 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 for rescission on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law. 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".
9. As can be seen from the facts of the case, it is clear that the decree-holder had put the decree into execution after sufficiently a long time and equally so, the judgment-debtor had slept over his rights by not invoking the jurisdiction of the Court on original side by moving appropriate application.
10. I had carefully gone through the order impugned in the CRP. The learned Senior Civil Judge, Puttur, ultimately had arrived at a conclusion that the application itself is not maintainable on execution side. It is needless to say that when the remedy itself is a misconceived remedy and the application on the execution side cannot be entertained at all, all the other questions touching the merits and demerits of the matter need not be gone into while deciding such an application. It is no doubt true that, since the same Court is dealing with the particular application, be that, on the original side or, be that, on the execution side, the said learned Judge, even on the ground of equity, could have treated the said application as one on the original side and could have decided the said application on merits. I do not intend to dwell in any deeper into this aspect for the reason that inasmuch as the application itself is not maintainable on the execution side, it cannot be said that there is any legal infirmity in the impugned order, to be interfered with by this Court while exercising the power under Article 227 of the Constitution of India. In view of, the same, the C.R.P is devoid of merits and accordingly the same shall stand dismissed.
11. However, it is made clear that this order would not come in the way of the revision petitioner-judgment-debtor in making appropriate application on the original side, if he is so advised and equally, the decree-holder is at liberty to take all the pleas available to him in law. Except making this observation, no other relief can be granted. No order as to costs.