Himachal Pradesh High Court
Renu Sharma vs Brig.C.K.Maitra Rt on 4 July, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CR No.67 of 2015
With
.
CR No.68 of 2015.
Reserved on: 02.06.2016.
Decided on: July 04, 2016.
Civil Revision Nos.67 & 68 of 2015:
Renu Sharma ...Petitioner.
of
Versus
Brig.C.K.Maitra rt ...Respondent.
Coram
The Hon'ble Mr.Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
________________________________________________________________________________________________________________________________
For the Petitioner: Mr.K.D.Sood, Sr.Advocate
with Mr.Sanjeev Sood,
Advocate.
For the Respondent: Mr.Ajay Kumar, Sr.Advocate
with Mr.Gautam Sood,
Advocate.
Sureshwar Thakur, J.
1. Civil Revision Petition No.67 of 2015 stands directed against the impugned order of the learned District Judge, Forest, Shimla whereby he allowed the Whether the reporters of the local papers may be allowed to see the Judgment?
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CR No.67 of 2015 with CR No.68 of 2015.
application preferred thereat by the applicant-
JD/respondent herein under Section 28 of the Specific .
Relief Act (for short hereinafter referred to as 'the Act').
In sequel, the agreement of sale recorded inter se the petitioner herein and the respondent herein stood set-
of aside, with a sequelling effect whereof of the rendition of the learned Additional District Judge, Fast Track Court rt recorded in Civil Suit No.72-S/1 of 2004/1999 rendition whereof stood affirmed by this Court in its decision recorded in RFA No.351 of 2005, standing also quashed and set-aside.
2. Civil Revision Petition No.68 of 2015 stands directed against the orders rendered on 30.03.2015 by the learned District Judge (Forests), Shimla on the Execution Petition preferred thereat by the decree holder-
petitioner whereby her prayer for execution of the decree rendered by the learned Additional District Judge, Fast Track Court, Shimla, H.P., decree whereof stood ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...3...
CR No.67 of 2015 with CR No.68 of 2015.
affirmed by this Court in its decision recorded in RFA No.351 of 2005, stood declined to her.
.
3. Since both the orders impugned in the Civil Revision Petitions aforesaid stand hinged upon the decree of the learned Additional District Judge, Fast of Track Court, Shimla, decree whereof stood affirmed in appeal by this Court in its judgment recorded in RFA rt No.351 of 2005 besides stand hinged upon apposite conditional decree, consequently when both also stand embroiled in a factual matrix common to each essentially the one impinging upon the effect of disobedience if any at the instance of the decree holder-petitioner herein of the mandate of the apposite conditional decree aforesaid, both warrant theirs standing disposed of by a common judgment.
4. The petitioner herein/decree holder, had from the Court of the learned Additional District Judge, Fast Track Court, Shimla, secured a decree for specific ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...4...
CR No.67 of 2015 with CR No.68 of 2015.
performance of agreement of 12.07.1997 recorded inter se her and the respondent herein qua property .
nomenclatured as Cottage No.24, MIG, H.P. Housing Board, Jakhoo, Shimla-1. The operative part of the judgment and decree recorded by the Court of the of learned Additional District Judge, Fast Track Court, Shimla underlines rt the factum of the respondent herein/Judgment debtor standing directed to execute within a period of two months there-from a sale deed with the decree holder-petitioner herein qua the afore-
referred suit property, also a condition stood mandated therein upon the petitioner-decree holder to within one month since thereat deposit a sum of Rs.8 lacs in the Court concerned. Furthermore, the relief claimed in the suit by the plaintiff of hers standing entitled to recover from the defendant a sum of Rs.50,000/- as damages stood accorded in her favour by the learned trial Court along with 9% interest being leviable thereon from the ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...5...
CR No.67 of 2015 with CR No.68 of 2015.
date of filing of the suit till realization of the amount aforesaid.
.
5. The judgment and decree of the learned trial Court stood appealed hereat by the aggrieved defendant-
respondent herein. The appeal preferred hereat by the of aggrieved defendant-JD against the judgment and decree of the learned trial Court, stood registered as RFA rt No.351 of 2005. This Court recorded therein a decision qua its dismissal. Consequently, the apposite judgment and decree recorded by the learned trial Court stood affirmed hereat. However, even though the defendant thereat appellant hereat omitted to in his apposite grounds of appeal urge therein of the apposite decree recorded by the learned trial Court suffering any impairment awakened by the factum of the plaintiff not within one month since thereat depositing before the Court concerned the balance sale consideration though hers standing enjoined by the mandate of the apposite decree ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...6...
CR No.67 of 2015 with CR No.68 of 2015.
yet the aforesaid facet of challenge was left open by this Court for its being urged by the .
defendant-JD before the learned Executing Court at the stage the apposite execution petition stood laid thereat by the plaintiff-decree holder. The of plaintiff / decree holder palpably omitted to within one month of the rt apposite rendition of the learned Additional District Judge deposit the balance sale consideration thereat. She deposited the balance sale consideration aforesaid in January 2006, hence its deposit by her occurred on 84 days standing elapsed since the elapsing of the relevant one month wherewithin she stood enjoined by the apposite rendition of the learned trial Court to deposit it thereat. The plaintiff did not hence beget compliance with the mandate of the decree of the learned trial Court affirmation whereof stood accorded by this Court in its rendition recorded in RFA ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...7...
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No.351 of 2005. Also the deposit of the aforesaid amount by the plaintiff beyond a period of one month .
since 25.10.2005 stood un-accompanied by an apposite application preferred thereat yet the decree holder-
plaintiff preferred an application before the Executing of Court in the year 2010 under Sections 148 and 151 of the Code of Civil Procedure with a prayer therein of time rt being ordered to be extended to her by it for depositing the balance sale consideration of Rs.8 lacs, as stood enjoined to be deposited by her before the learned trial Court within one month from the date of its rendition, rendition whereof stood pronounced on 25.10.2005.
Though narrations qua it occur in the order of the learned District Judge, (Forests) rendered in Civil Miscellaneous application No.151-S/6 of 2013/10 comprising the application constituted thereat by the judgment debtor under Section 28 of the Act for rescission of contract of agreement recorded inter se the plaintiff and the ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...8...
CR No.67 of 2015 with CR No.68 of 2015.
defendant on 12.7.1997 besides for setting aside the decree of the learned trial Court rendered on 25.10.2005, .
yet he discountenanced the belated endeavour of the plaintiff-decree holder to seek extension of time from it for hers begetting compliance qua the apposite rendition of of the learned trial Court. Furthermore, the learned District Judge (Forests) also hence proceeded to dismiss rt the Execution Petition preferred thereat by the plaintiff/petitioner herein wherefrom Civil Revision No.68 of 20015 has arisen.
6. The quintessential/nerve centre of the controversy engaging the parties at contest hinges upon an interpretation of Section 28 of the Act, provisions whereof stands extracted hereinafter:
"28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed :- (1) Where in any suit or 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 ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...9...
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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.
of (2) Where a contract is rescinded under sub-section (1), the court-(a) shall direct the purchaser or the lessee, if rt he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.
(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...10...
CR No.67 of 2015 with CR No.68 of 2015.
may, on application made in the same suit, award the purchaser or lessee such further relief as he may be .
entitled to, including in appropriate cases all or any of the following reliefs, namely:-(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate of possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be rt claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the Court."
A mandate stands enjoined therein of omission on part of the vendee/decree holder to deposit the sale consideration within the time allowed/granted to her by the learned trial Court or within such further validly extended period, empowering it hence to rescind the contract. Since the plaintiff omitted to within the time prescribed by the learned trial Court make the apposite ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...11...
CR No.67 of 2015 with CR No.68 of 2015.
deposit thereat of the balance sale consideration nor moved it with dispatch for further time being granted to .
her for meteing compliance thereto rather hers belatedly seeking enlargement of time from the learned Executing Court for its deposit thereat, by hers preferring an of application thereat in the year 2010, constituted the prime ground for the learned District Judge (Forest), Shimla to rt discountenance her grossly procrastinated apposite endeavour whereupon it concluded of with the conditional decree of the learned trial Court hence standing infracted by the plaintiff, infraction whereof warranting it to order for rescission of the contract of 12.07.1997 qua the suit property recorded inter se the plaintiff and the defendant.
The learned District Judge (Forest) while allowing the application preferred thereat under Section 28 of the Act had relied upon pronouncements of the Hon'ble Apex Court reported in V.S.Palanichamy Chettair Firm versus C.Alagappan & Anr., (1999) 4 SCC 702, ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...12...
CR No.67 of 2015 with CR No.68 of 2015.
besides placed reliance upon a verdict of the Hon'ble Apex Court reported in Lanka Venkateswarlu (Dead) by LRs .
versus State of Andhra Pradesh & Ors., (2011) 4 SCC
363. The tenacity of the rendition of the learned District Judge (Forests), Shimla recorded in Civil Miscellaneous of Application No.151-S/6 of 2013/10 wherefrom Civil Revision Petition No.67 of 2015 has arisen would assume rt vigour only when this Court on analyzing the aforesaid judgments of the Hon'ble Apex Court whereupon he founded his impugned verdict, it holds of their respective ratio decidendi standing aptly applied in his impugned rendition before this Court by the learned District Judge (Forests). Hence this Court proceeds to engage itself in the onerous task of analyzing the import of the verdicts of the Hon'ble Apex Court reported in the law journals aforesaid besides this Court would hence unearth therefrom qua reliance thereupon by the learned District Judge (Forests) being apt or inapt, also its standing ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...13...
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hence coaxed to concomitantly sustain or reverse his verdict. For this Court to efficaciously engage itself in the .
aforesaid task, the extraction of relevant paragraphs thereof is imperative. The relevant paragraphs of the rendition of the Hon'ble Apex Court reported in of V.S.Palanichamy's case (supra) stand encompassed in paragraphs 16 and 17, paragraphs whereof stand rt extracted herein-after:-
"16. In view of the decision of this Court in Ramankutty Guptan's case (1994) AIR SCW 1533) (supra) when the trial Court and the executing Court are same, executing Court can entertain the application for extension of time though the application is to be treated as one filed in the main suit. On the same analogy, the vendor judgment-
holder can also seek rescission of the contract of sale or take up this plea in defence to bar the execution of decree. One of the grounds on which the trial Court dismissed the execution application was that the decree holder did not pay the balance of consideration as per the sale agreement and also did not pay within the time stipulated by the Court in the decree. High Court could have certainly gone into this question when application for extension of time was filed before it. However, on the objection ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...14...
CR No.67 of 2015 with CR No.68 of 2015.
by the judgment-debtor, it chose to send back the matter to the executing Court for decision on these .
applications, which was perhaps, in the circumstances, was not correct procedure to adopt. But then, at the same time, the High Court put shackles on the discretion of the executing Court by observing that vendor might have felt that after the appeal filed by the vendor judgment-holder against of the decree for specific performance was disposed of they can even then deposit the amount or at the time of seeking the execution of the sale deed. rt
17. The agreement of sale was entered into as far back on February 16, 1980, about 19 years ago. No explanation is forthcoming as to why the balance amount of consideration could not be deposited within time granted by the Court and why no application was made under Section 28 of the Act seeking extension of time of this period. Under Article 54 of the Limitation Act, 3 years period is prescribed for filing the suit for specific performance of contract of sale from the date of the agreement or when the cause of action arises. Merely because a suit is filed within the prescribed period of limitation does not absolve the vendee-plaintiff from showing as to whether he was ready and willing to perform his part of agreement and if there was non- performance was that on account of any obstacle put by the vendor or otherwise. Provisions to grant specific performance of an agreement are quite stringent. Equitable considerations come into play.
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Court has to see all the attendant circumstances including if the vendee has conducted himself in a .
reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the Court as a matter of course allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the of trial Court and 3 years of its confirmation by the appellate Court? It is not the case of the respondent-decree holder that on account of any rt fault on the part of the vendor-judgment-debtor, the amount could not be deposited as per the decree.
That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the decree-holder-respondents as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the decree holder-respondents and no extension of time be granted to them to comply with the decree."
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7. The verdict of the Hon'ble Apex Court reported in Lanka Venkateshwarlu's case (supra), relevant .
paragraphs whereof stand extracted herein-after:-
"19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this of country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient rt cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors., 1987 2 SCC 107.
23. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:-
"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation."::: Downloaded on - 15/04/2017 20:45:20 :::HCHP
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"26. The law of limitation is a substantive law and has definite consequences on the right and .
obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its of own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of rt negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...18...
CR No.67 of 2015 with CR No.68 of 2015.
case, not being satisfied with the use of mere intemperate language, the High Court resorted to .
blatant sarcasms.
29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy of unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the rt law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies;
prejudices or predilections can not and should not form the basis of exercising discretionary powers."
8. The Hon'ble Apex Court had in its judgment recorded in V.S.Palanichamy (supra) vindicated the orders recorded by the learned Executing Court thereat whereby the learned Executing Court had dismissed the execution petition preferred thereat by the decree holder on the ground of the decree holder thereat constituting an apposite application thereat for execution of the decree after three years standing elapsed since the dismissal of the appeals by the High Court, appeals whereof stood ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...19...
CR No.67 of 2015 with CR No.68 of 2015.
preferred thereat by the aggrieved judgment debtors-
defendants therein. Besides the aforesaid facet which .
constrained the Hon'ble Apex Court in V.S.Palanichamy (supra) to uphold the rendition of the learned Executing Court whereby the latter dismissed the apposite Execution of Petition preferred thereat, the factum of the decree holders not depositing the sale consideration within the rt period enjoined upon them by the decree nor theirs within limitation preferring an apposite application thereat for seeking there-from enlargement of time to them for depositing the sale consideration, also constrained the Hon'ble Apex Court to validate the orders of the learned Executing Court whereby the latter Court dismissed the apposite Execution Petition constituted thereat by the decree holders. Even in the rendition of the Hon'ble Apex Court embodied in Lanka Venkateshwarlu (supra) the Hon'ble Apex Court had while dwelling upon the imperativeness qua launching of an appropriate remedy ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...20...
CR No.67 of 2015 with CR No.68 of 2015.
within time by an aggrieved, also had therein prescribed the adoption of a liberal approach by Courts of law while .
dealing with an application preferred under Section 5 of the Limitation Act yet the Hon'ble Apex Court therein enjoined Courts of law whereat an application under of Section 5 of the Limitation Act stands preferred, to insist upon delay in the launching of an appropriate remedy by rt the aggrieved standing anchored upon an evident explicated sufficient cause whereupon alone they would hold empowerment to condone the apposite delay, contrarily lack of portrayals by the aggrieved in explication of delay occurring in his canvassing his remedy warranting the sequel of the apposite application of the aggrieved suffering the misfortune of dismissal, especially when the countenancing of the belated endeavour of the aggrieved without any evident explicated sufficient cause when precludes him to espouse his remedy would tantamount to a deprivation of a valuable ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...21...
CR No.67 of 2015 with CR No.68 of 2015.
right foisted in the party acting vigilantly. The verdict of the Hon'ble Apex Court as relied upon by the learned .
District Judge (Forests) in V.S.Palanichamy (supra) for its standing approbated by this Court warrants congruity qua the factual matrix therein vis-à-vis the factual matrix of hereat. The order of the learned Executing Court dismissing the application constituted thereat by the rt decree holders secured validation from the Hon'ble Apex Court in V.S.Palanichamy (supra) on the anvil of the decree holders thereat proceeding to prefer before the Executing Court concerned an apposite Execution Petition after five years standing elapsed since the rendition of the apposite decree by the trial Court besides its preferment thereat by the decree holders therein occurring beyond three years since the dismissal of the appeals of the aggrieved defendants by the High Court concerned.
Hereat, it is imperative to allude to the relevant paragraph of the rendition of Hon'ble Apex Court in V.S.Palanichamy ::: Downloaded on - 15/04/2017 20:45:20 :::HCHP ...22...
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(supra) which stood extracted herein-after, wherein the view stood taken by it of with a period of three years .
standing prescribed as the period of limitation within which the apposite execution petition for execution of a decree of specific performance stands enjoined to be of constituted by the decree holder before the learned Executing Court concerned, period whereof though rt stands mandated therein to be not strictly applicable nonetheless it being an important circumstance to be considered:-
"...That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the decree-holder-respondents as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record..."::: Downloaded on - 15/04/2017 20:45:21 :::HCHP
...23...
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Since with the Hon'ble Apex Court applying the aforesaid .
principle, it concluded thereupon of the decree of specific performance thereat becoming executable within three years of the rendition of the High Court concerned yet the apposite Execution Petition thereat standing constituted beyond three of years hence palpably appears to garner a conclusion from the Hon'ble Apex Court qua the orders of dismissal of the learned rt Executing Court thereat of the apposite application preferred thereat by the decree holders apposite orders whereof standing anvilled upon the apposite applications being grossly time barred, consequently not suffering from any vice of invalidation. However, extantly the Execution Petition hereat stood constituted by the decree holder herein before the learned Executing Court on 15.7.2010 hence within less than nine months standing elapsed since the decree of the learned trial Court standing affirmed by this Court under its decision recorded on 11th November, 2009 in RFA No.351 of 2005. The decree in affirmation to the decree of the ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...24...
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learned trial Court stood rendered by this Court on 11th November, 2009 hence became the executable decree .
predominantly when this Court had temporarily stayed the execution of the apposite decree of the learned trial Court, order whereof of this Court temporarily staying the of operation of the apposite judgment and decree of the learned trial Court impugned hereat by the aggrieved rt defendant stood made absolute by this Court on 13.11.2006. Hence, consequently with this Court on 22.12.2005 temporarily staying the execution of the apposite decree of the learned trial Court whereafter it made absolute its ad interim order temporarily staying the execution of the apposite decree recorded by the learned trial Court obviously precluded the decree holder herein to since 22.12.2005 with dispatch therefrom up to the judgment recorded by this Court on 11th November, 2009 launch an apposite Execution Petition before the learned Executing Court concerned. The apposite Execution ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...25...
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Petition constituted by the decree holder before the learned Executing Court would suffer the ill fate of .
dismissal only when she had constituted it thereat beyond three years which is the period mandated in the verdict of the Hon'ble Apex Court in V.S.Palanichamy (supra), within of which a decree holder of a decree of specific performance rtstands empowered to constitute an Execution Petition before the learned Executing Court concerned. In aftermath, with merely a delay of nine months occurring on part of the decree holder herein computable from the recording of a decision on 11th November, 2009 by this Court in RFA No.351 of 2005 cannot render her apposite Execution Petition constituted before the learned Executing Court concerned to be beyond limitation. Also hence the aforesaid delay is minimal besides the apposite application of the decree holder herein is within limitation vis-à-vis the inordinate delay beyond limitation manifested in the judgment of ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...26...
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Hon'ble Apex Court in V.S.Palanichamy (supra), procrastinated time barred delay whereof on part of the .
decree holders therein constrained the learned Executing Court thereat to refuse its execution, orders whereof of the learned Executing Court thereat stood affirmed by the of Hon'ble Apex Court. Sequelly, hence with an apparent distinctivity occurring inter se the factual matrix hereat rt vis-à-vis the factual matrix existing in the judgment of the Hon'ble Apex Court in V.S.Palanichamy (supra) palpably of a visible display therein of an immense hiatus or a time barred gap occurring in the launching of the execution proceedings by the decree holders thereat vis-
à-vis the minimal gap besides the relevant gap being not time barred hereat, qua the executable rendition of this Court recorded in RFA No.351 of 2005 on 11th November, 2009, besides reiteratedly with the decree holder hereat constituting the apposite Execution Petition before the learned Executing Court within ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...27...
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limitation, the application of the principle enshrined in the verdict of the Hon'ble Apex Court in V.S.Palanichamy .
(supra) qua immensity of delay or any evident statutorily barred procrastinated delay occurring at the instance of the decree holder thereat since the apposite executable of rendition therein vis-à-vis the launching of execution proceedings by the decree holders thereat, concomitantly rt barring the decree holders thereat to seek execution of the decree, was obviously unavailable for attraction hereat by the learned Court below preeminently when for reasons afore-stated, the immensity of delay as had occurred therein does not occur hereat. In sequel, its application hereat is grossly inapt. However, the principle also encapsulated therein of an omission on the part of the decree holder to within the time prescribed in the apposite decree deposit the sale consideration before the Court concerned operating as a bar upon the decree holder to seek execution of the apposite decree yet may ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...28...
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also for reasons assigned herein-after remains un-attracted qua the facts at hand rendering hence also .
any reliance thereupon by the learned District Judge (Forests) to be inapt. However, before determining qua theirs occurring any deliberate willful omission on the part of of the decree holder to beget compliance with the apposite rendition of the learned trial Court enjoining her rt to deposit the sale consideration within one month of its rendition, rendition whereof stood pronounced on 25.10.2005, for hence this Court standing constrained to accept the findings of the learned District Judge founded upon the verdicts of the Hon'ble Apex Court, an allusion to the factum of the plaintiff-decree holder depositing the sale consideration 64 days beyond the time prescribed in the apposite decree for its deposit by her besides the factum of the deposit aforesaid not resting upon any apposite order recorded by the learned trial Court yet rendering the aforesaid deposit by the decree holder ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...29...
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being construable to be a valid or an invalid deposit, also enjoins an adjudication thereon by this Court. The .
pronouncement by this Court qua the validity or invalidity of deposit by the plaintiff of the sale consideration beyond the period prescribed for its deposit by the of apposite decree of the learned trial Court of 25.10.2005 preeminently is imperative as on this Court rendering an rt adjudication qua the apposite deposit by her constituting a valid deposit would concomitantly render the preferment of an apposite application by the plaintiff-
decree holder in the year 2010 before the Executing Court wherein she sought an order from it qua extension of time for its deposit thereat standing granted to her, to assume no significance rather it would be relegated to the limbo of oblivion, also reliance by the learned District Judge in his impugned rendition upon a verdict of the Hon'ble Apex Court in Lanka Venkateshwarlu (supra) wherein their Lordships interdict Courts of law against allowing ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...30...
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application for condonation of delay when they omit to explicate therein a sufficient cause precluding the .
aggrieved to promptly avail the remedy especially when hence a right accrues to a vigilant litigant, would hence stand jettisoned or reliance thereupon by him would be of amenable to a construction of it being an inapposite reliance by him also his thereupon holding a fallacious rt view of the belated endeavour made there-before by the decree holder for its ordering qua extension of time being granted to her for depositing the balance sale consideration before the Court concerned, warranting hence its standing discountenanced by this Court. Before alluding to the relevant records manifesting theirs impinging upon the validity of deposit by the decree holder of the balance sale consideration beyond 64 days of its standing enjoined by the apposite conditional decree to be deposited by her before the Court concerned, it is imperative to also allude to the provisions ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...31...
CR No.67 of 2015 with CR No.68 of 2015.
engrafted in Section 28 of the Act, provisions whereof stand extracted herein-above, provisions whereof though .
warrant the Court to on an apposite application laid there-before by the defendant-judgment debtor to on availability of demonstrable affirmative evidence, allow it, of provisions whereof also manifest of with the decree holder evidently not depositing the sale consideration rt within time granted in the apposite decree nor the decree holder seeking an order from the Court concerned for time standing extended to her/him for its deposit there-
before by him/her, empowering hence the Court concerned to allow the application preferred thereat by the judgment debtor under Section 28 of the Act yet the import borne by the phrase 'as justice of the case may require' as occurs in Section 28 of the Act warrants its standing imputed its innate signification by this Court for thereupon its determining qua the impugned rendition of the learned Court below on an application constituted ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...32...
CR No.67 of 2015 with CR No.68 of 2015.
there-before by the judgment debtor-defendant under Section 28 of the Act, even if assumingly clinching proof .
for sustaining the relief ventilated therein stood evinced there-before qua the decree holder omitting to within the time purveyed to him by the apposite decree nor hers of within the extended time afforded to her depositing the sale consideration before the Court concerned, while rt overlooking its existence/occurrence therein has committed a fallacy in recording its impugned decision.
The parlance borne by the aforesaid words existing in Section 28 of the Act is of the Court concerned even when standing assumingly seized with demonstrable evidence of compliance not standing begotten by the decree holder with the mandate of an apposite decree nor the decree holder begetting necessary compliance within the time extended by the Court concerned for the purposes aforesaid yet the aforesaid non compliances by the decree holder not per se warranting it to rescind the ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...33...
CR No.67 of 2015 with CR No.68 of 2015.
contract, if the attending circumstances coagulated with the omissions aforesaid would sequel perpetuation of .
injustice whereas the Court concerned while even when assumingly standing seized with evidence warranting the rescission by it of the apposite contract, is yet enjoined of to in the larger interest of justice omit to rescind it.
9. For gauging from the relevant records the rt prime factum of whether the order of the learned District Judge in Civil Misc. App. No.151-S/6 of 2013/10 whereby he rescinded the contract of sale qua the suit property recorded inter se the parties at lis stands percolated with a paragon virtue of justice dehors non-
compliances, if any, by the decree holder within the time prescribed by the mandate of the learned trial Court of 25.10.2005, this Court ought not to remain oblivious to the factum of the aggrieved defendant preferring an appeal before this Court against the decree of the learned trial Court of 25.10.2005, appeal whereof came to be ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...34...
CR No.67 of 2015 with CR No.68 of 2015.
registered as RFA No.351 of 2005. The appeal aforesaid came to be instituted on 19.12.2005. On .
22.12.2005 this Court stayed till further orders the operation of the decree of the learned trial Court impugned hereat by the aggrieved defendant. In the of interregnum since 22.12.2005 till 13.11.2006 the plaintiff-decree holder deposited the balance of the sale rt consideration before the trial Court. On 13.11.2006 this Court recorded an order qua recalling of the aforesaid amount as stood deposited by the plaintiff- decree holder before the learned trial Court besides for its being invested in a fixed deposit. Furthermore, this Court on 13.11.2006 had made absolute its order of 22.12.2005 whereby it temporarily stayed the operation of the apposite decree of the learned trial Court impugned hereat by the aggrieved defendant also it on 13.11.2006 had mandated therein of its aforesaid rendition being subject to the defendant depositing Rs.50,000 plus ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...35...
CR No.67 of 2015 with CR No.68 of 2015.
interest @ 9% per annum from the date of filing of the suit till its deposit. The defendant abided by the .
aforesaid direction of this Court rendered on 13.11.2006.
Also the defendant did not oppose the application preferred hereat by the plaintiff for its release being of ordered in her favour whereupon this Court in its order recorded on 13.11.2006 directed the aforesaid sum of rt money deposited by the aggrieved defendant being released in her favour. The aforesaid manifestations bespeak of the acquiescence of the aggrieved defendant with the apposite renditions of the learned trial Court, effect whereof stands alluded herein-after to estop him to contest the execution application of the decree holder.
10. Be that as it may, before this Court proceeds to on the anvil of the previous herein-above referred renditions of this Court holds of theirs assumingly validating the deposit of the balance sale consideration ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...36...
CR No.67 of 2015 with CR No.68 of 2015.
by the plaintiff before the Court concerned besides of hers hence begetting compliance with the rendition of the .
learned trial Court of 25.10.2005, an advertence to the judgment of the Hon'ble Apex Court reported in Kumar Dhirendra Mullick & Ors. Versus Tivoli Park Apartments of Ltd., (2005) 9 SCC 262, relevant paragraph 30 whereof stands extracted herein-after is imperative:-
rt "30. In the case of Sardar Mohar Singh v. Mangilal4 it has been held that section 28 (1) postulates that the court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio Section 28 gives power to grant order of rescission of the agreement which itself indicates that till the sale deed is executed, the trial court retains its power and jurisdiction to deal with the decree of the specific performance. Therefore, the court has the 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, despite the application for rescission of the agreement/decree."
In the verdict aforesaid, the Hon'ble Apex Court has postulated the diktat of the Court whereat applications ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...37...
CR No.67 of 2015 with CR No.68 of 2015.
under Section 28(1) of the Act are constituted not being functus officious rather its still standing invested with a .
power to enlarge time qua the decree holder for hers/his depositing the balance sale consideration before the Court concerned dehors hers/his omission to make the of relevant deposit within time prescribed by the apposite renditions, diktat whereof read in coagulation with the rt diktat referred to herein-above comprised in the renditions of this Court made in proceedings occurring in RFA No.351 of 2005, constrain an imperative inference of theirs constituting validation by this Court qua the deposit of the sale consideration by the decree holder before the Court concerned even when the relevant deposit by her occurred beyond the time mandated in the apposite decree for its deposit thereat. In sequel, the apposite renditions of this Court occurring in proceedings drawn in RFA No.351 of 2005 did operate as a fiat upon the learned District Judge to formalize the deposit of a ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...38...
CR No.67 of 2015 with CR No.68 of 2015.
sum of Rs.8 lacs made by the decree holder before the Court concerned, deposit whereof constituted the .
balance sale consideration payable by the plaintiff to the defendant-judgment debtor, dehors the factum of the decree holder preferring an application thereat for of extension of time or enlargement of time on five years standing elapsed since the rendition of the apposite rt decree of specific performance pronounced by the learned trial Court on 13.11.2006 preeminently when this Court had recalled from the learned trial Court a sum of Rs.8 lacs as stood deposited thereat by the plaintiff.
Consequently, when the order of this Court of 13.11.2006 whereby it recalled from the learned trial Court a sum of Rs.8 lacs deposited thereat by the decree holder for it standing invested in a fixed deposit hereat hence tantamounts to its legalizing also its legitimizing the deposit of the aforesaid amount by the plaintiff/decree holder before the learned trial Court besides also gives leverage to an inference of hence ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...39...
CR No.67 of 2015 with CR No.68 of 2015.
this Court per se extending the time for its deposit thereat by her. In aftermath, the unequivocal communications .
existing in the verdict of the learned District Judge recorded in Civil Miscellaneous application No.151-S/6 of 2013/10 whereby he allowed the application preferred of thereat by the judgment debtor under Section 28 of the Act, for reasons afore-stated his inappositely applying rt the mandate of the judgments comprised in V.S.Palanichamy and Lanka Venkateswarlu (supra) besides the view held by him of the deposit of the balance amount of sale consideration by her not occurring within the time for its deposit granted by the apposite rendition of the learned trial Court also his holding qua the apposite application of the decree holder preferred thereat wherein she sought a relief qua enlargement or extension of time standing granted to her without hers explicating therein a sufficient cause which precluded her to with dispatch institute it thereat hence ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...40...
CR No.67 of 2015 with CR No.68 of 2015.
entailing it to accord relief to the judgment debtor/defendant on his application preferred under .
Section 28 of the Act, stands concluded by this Court to hold no efficacy preeminently when palpably his verdict appears to undermine the efficacy of the renditions of of this Court recorded on 13.11.2006 whereupon given the echoings therein hence the aforesaid inferences stand rt drawn by this Court, inferences whereof concomitantly ipso facto invalidate the impugned rendition recorded by the learned District Judge. Also the learned District Judge while holding a stricto senso interpretation of Section 28 of the Act bereft of his perceiving the import of the phraseology 'as the justice of the case may require' as stands embodied therein, coinage whereof bear a signification, of the Court concerned though standing assumingly seized with evidence of the plaintiff not begetting compliance with the apposite decree yet the said non compliance being not persuasive enough to allow the application of the ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...41...
CR No.67 of 2015 with CR No.68 of 2015.
judgment debtor/defendant preferred thereat under Section 28 of the Act unless attending material warrants .
of justice being done to the plaintiff/decree holder.
Significantly, with the plaintiff receiving an order from this Court on 13.11.2006 whereupon hence the deposit of the of sale consideration by her before the Court concerned stood formalized, the belittling of its significance by the rt learned District Judge by his erroneously deciding Civil Miscellaneous application No.151-S/6 of 2013/10 has not done justice to the plaintiff rather has perpetuated injustice upon her especially when she has palpably manifested hence her readiness and willingness to perform the contract. Furthermore, with the defendant-
judgment debtor portraying his acquiescence qua the rendition of this Court of 13.11.2006 whereupon he stood enjoined to deposit a sum of Rs.50,000 plus interest @ 9% per annum from the date of filing of the suit till its realization, besides his meteing compliance qua the ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...42...
CR No.67 of 2015 with CR No.68 of 2015.
condition precedent aforesaid foisted upon him qua the order of this Court making absolute its ad interim order .
staying the operation of the decree impugned hereat by the aggrieved defendant/judgment debtor, hence his fastening efficacy in its entirety qua it whereupon he too of fastened conclusivity qua the order of this Court recorded on 13.11.2006, besides connoted his unwillingness rt besides his un-readiness to execute the decree of the learned trial Court, apart there-from when he contrarily also acquiesced to this Court ordering for a sum of Rs.50,000 deposited by him in the Registry of this Court alongwith up to date interest standing released to the plaintiff hence portrayed his acquiescence to the decree under execution, does estop him to contend of non compliances, if any, by the plaintiff with the apposite rendition of the trial Court being open for its standing rescinded spurring from hers omitting to deposit within the time mandated by the apposite decree a sum of Rs.8 ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...43...
CR No.67 of 2015 with CR No.68 of 2015.
lacs before the Court concerned. Even otherwise as apparent on a reading of the operative part of the .
judgment of this Court recorded in RFA No.351 of 2005, given the said facet standing not taken by the aggrieved defendant as an apposite ground of appeal in RFA of No.351 of 2005 as stood preferred hereat by him against the impugned rendition of the learned trial Court, also rt does entail an inference from this Court of with the defendant waiving the said ground besides abandoning the aforesaid facet hence his holding no leverage for baulking the execution of the apposite decree by the plaintiff. Even if this Court in its decision recorded in RFA No.351 of 2005 did leave an option to the defendant to urge the facet aforesaid before the learned Executing Court yet thereunder with no right standing reserved in his favour to file a petition under Section 28 of the Act did obviously not foist in him any leverage to institute a petition under Section 28 of the Act before the learned District Judge. In aftermath for the ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...44...
CR No.67 of 2015 with CR No.68 of 2015.
reasons recorded hereinabove spurring an inference of this Court under its afore-referred rendition formalizing .
the deposit of the balance sale consideration by the plaintiff before the Court concerned of hence her concomitantly begetting compliance with the rendition of recorded in her favour by learned trial Court also warranted the learned District Judge to reject the rt application preferred there-before by the defendant under Section 28 of the Act. The rejection of the application preferred thereat under Section 28 of the Act by the judgment debtor would given the in extenso narrations made herein-above whereupon an inference stands erected by this Court qua validation of the deposit of balance sale consideration by the plaintiff-decree holder before the Court concerned upsurging therefrom, apposite echoings therein when operating as a fiat upon the learned District Judge yet when stood overlooked by him ingrain his verdict with an aura of invalidation.
::: Downloaded on - 15/04/2017 20:45:21 :::HCHP...45...
CR No.67 of 2015 with CR No.68 of 2015.
Hence, given the imputation by this Court qua the signification borne by the parlance 'in the interest of .
justice' embodied in Section 28 of the Act of all the afore-referred attending circumstances standing enjoined to be borne in mind by him for doing justice to the of plaintiff-decree holder, contrarily when they stood in the impugned rendition relegated to the limbo of oblivion, as rt a corollary, the impugned rendition is far away from doing justice to the plaintiff.
11. The learned counsel appearing for the defendant-respondent herein has relied upon a judgment of the Hon'ble Apex Court reported in P.R.Yelumalai versus N.M.Ravi (2015) 9 SCC 52, relevant paragraph-12 whereof stands extracted herein-after, for this Court standing constrained to not accept the revision petitions arising from the impugned renditions recorded by the learned trial Court:-
::: Downloaded on - 15/04/2017 20:45:21 :::HCHP...46...
CR No.67 of 2015 with CR No.68 of 2015.
"11. Arguments were also made by the learned counsel on both sides as to which Court had .
the power to grant extension of time and several authorities were cited on this point. However, we find that after the execution Court had dismissed the execution proceeding on the ground of delay in depositing the amount, the same question was dealt with by the original of side of the Trial Court as well in the application for extension of time. Since both the Courts have given concurrent findings that the case for rt extension of time was not made out, we are of the opinion that dealing with the question as to which Court had the jurisdiction to decide this point, will be an exercise in futility. It would suffice to say that the Court has the discretion to extend the time upon an application made by the party required to act within a stipulated time period. Extension of time can be granted even after the expiry of the period originally fixed. In Johri Singh v. Sukh Pal Singh and Ors., 1989 4 SCC 403, this Court observed:
"This Section empowers the Court to extend the time fixed by it even after the expiry of the period originally fixed. It by implication allows the Court to enlarge the time before the time originally fixed. The use of 'may' shows that the power ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...47...
CR No.67 of 2015 with CR No.68 of 2015.
is discretionary, and the Court is, therefore, entitled to take into account .
the conduct of the party praying for such extension."
wherein a formidable verdict stands recorded therein by their Lordships, of failure on the part of the decree holder of holding a conditional decree, to deposit the balance sale consideration within the time as enjoined upon him by the rt apposite decree besides his omitting to make the apposite deposit within the validly extended time, sequelling the fate of the Hon'ble Apex Court validating the order of the Executing Court whereby it refused to execute the apposite decree. However, the aforesaid judgment relied upon by the learned counsel for the defendant is reflective of the factum of the conditional decree thereat recorded by the Court concerned in favour of the decree holder therein being a conditional decree mandating therein of with the decree holder omitting to deposit the balance sale consideration ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...48...
CR No.67 of 2015 with CR No.68 of 2015.
within the time stipulated therein, his relevant omissions sequelling the legal effect of his suit being deemed to be .
dismissed. However, extantly the apposite decree hereat of the learned trial Court though enjoins upon the decree holder to deposit the balance sale consideration within of one month since its pronouncement before the learned trial Court nonetheless there is no further diktat therein of rt failure of the decree holder-plaintiff to deposit the balance sale consideration thereat within the time stipulated therein yet sequelling the effect of her suit being deemed to be dismissed. Predominantly hence with the judgment relied upon by the learned counsel for the defendant, the cascading effect of non deposit by the decree holder of the balance sale consideration before the Court concerned within the time stipulated by it stood also mandated therein inasmuch as the apposite omissions begetting the sequel of a deemed dismissal of the suit of the plaintiff-decree holder thereat whereas the ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...49...
CR No.67 of 2015 with CR No.68 of 2015.
aforesaid diktat is palpably amiss hereat. In aftermath, any reliance by the learned counsel for the defendant .
upon the aforesaid verdict of the Hon'ble Apex Court for his espousing hereat qua the failure on the part of the decree holder to within time or beyond the validly of extended time deposit the balance sale consideration before the Court concerned not facilitating her to execute rt the decree rather validating the rendition of the learned trial Court recorded in Civil Miscellaneous application No.151-S/6 of 2013/10, holds no vigour and sinew. Also the aforesaid submission stands emaciated in view of the afore-referred ad nauseam discussion tellingly bespeaking the factum of with this Court formalizing the deposit of the balance sale consideration by the plaintiff-
decree holder before the Court concerned even when the deposit aforesaid by her occurred beyond the time prescribed by the apposite decree of specific performance recorded in her favour by the learned trial Court besides when the ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...50...
CR No.67 of 2015 with CR No.68 of 2015.
effect of formalizing by this Court qua the deposit of the balance sale consideration by the plaintiff is of hence .
time standing enlarged or extended by this Court to the plaintiff for begetting compliance qua the apposite rendition of the learned trial Court, the learned District of Judge fell in gross error in belittling its significance also his overlooking its impact whereupon he untenably rt construed of with the plaintiff not begetting compliance with the apposite rendition of the decree of specific performance recorded in her favour by the learned trial Court within the time stipulated therein, the application preferred thereat by the judgment debtor under Section 28 of the Act warranting its standing allowed especially when the aforesaid verdict for all the reasons afore-
stated has overlooked besides subtracted the import of the signification borne by the phraseology 'as the justice of the case may require' as occur in the apposite provisions of Section 28 of the Act. Imperatively when ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...51...
CR No.67 of 2015 with CR No.68 of 2015.
for carrying forward the spirit of the words 'as the justice of the case may require' occurring therein for reasons .
afore-stated this Court holds a view of the orders previously recorded by this Court on 13.11.2006 during the course of its holding proceedings in RFA No.351 of of 2005 tantamounting to theirs being construed to be formalizing the deposit of the balance sale consideration rt by the plaintiff before the Court concerned besides extending the time afforded by the apposite decree for its deposit by her. As a corollary, hence the overlookings of the aforesaid facets by the learned District Judge necessitates when hence defeats the mission/spirit of the imputation by this Court to the coinage 'as the justice of the case may require' occurring in Section 28 of the Act, both his impugned renditions warrant interference by this Court.
12. In view of the above detailed discussions both the petitions stand allowed and the impugned orders ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP ...52...
CR No.67 of 2015 with CR No.68 of 2015.
recorded by learned District Judge (Forests), Shimla in Civil Misc. Application No.151-S/6 of 2013/10 rendered .
on 30.3.2015 and the impugned order rendered in Execution Petition on 30.3.2015 stand quashed and set aside. The Executing Court concerned is directed to of decide the Execution Petition in accordance with law within three months. The parties are directed to appear rt before the learned Executing Court on 20th July, 2016. All pending applications stand disposed of. Records of the Courts below be sent down forthwith.
July 04, 2016. (Sureshwar Thakur) Judge (soni) ::: Downloaded on - 15/04/2017 20:45:21 :::HCHP