Karnataka High Court
Shrishailappa S/O Channappa Metgud vs Shri Maruti S/O Fikrappa Chivgol on 16 February, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRP No. 100097 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO. 100097 OF 2021
BETWEEN:
1. SHRISHAILAPPA S/O CHANNAPPA METGUD,
AGE: 63 YEARS,
OCC. BUSINESS AND AGRICULTURE,
R/O BAILHONGAL,
DIST. BELAGAVI-591102.
2. SHRI SHANKARANNA S/O ISHWARAPPA MUNAVALLI,
AGE: 59 YEARS, OCC. BUSINESS,
R/O SHIDDHALING KRUPA, DESHPANDE NAGAR,
HUBLI, DIST. DHARWAD-580009.
3. SHRI. ANIL S/O VIJAYBASAPPA PATTED
AGE: 53 YEARS, OCC. BUSINESS,
R/O. SRINAGAR, M.M EXTENSION,
BELAGAVI-590001.
...PETITIONERS
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
SHRI MARUTI S/O. FIKRAPPA CHIVGOL
AGE: MAJOR, OCC. BUSINESS,
R/O GUGARANATTI VILLAGE,
TQ AND DIST. BELAGAVI-590001.
...RESPONDENT
(BY SRI. MRUTHYUNJAYA TATA BANGI AND
SRI. S.S.YALIGAR, ADVOCATES)
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CRP No. 100097 of 2021
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
PRAYING TO SET ASIDE THE ORDER DATED 28.09.2021
PASSED BY THE FIRST ADDITIONAL SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, BELAGAVI AT BELAGAVI IN E.P.
69/2013 REJECTING IA NO 2 FILED BY THE PETITIONER
UNDER SECTION 151 OF CPC VIDE ANNEXURE-G, AND
CONSEQUENTLY ALLOW THE IA NO.2 IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Present petition by the Decree Holders aggrieved by the order dated 28.09.2021 passed in E.P.No.16.2013 on the file of the I Additional Senior Civil Judge and CJM, Belagavi (hereinafter referred to as the 'Executing Court'), in and by which the Executing Court dismissed the application in I.A.No.II filed by the petitioners/Decree Holders under Section 151 of the CPC seeking permission to dispense with deposit of balance consideration amount of Rs.28,15,000/- to be deposited by them as directed and for direction to Judgment Debtor to execute and register deed of sale in respect of property bearing R.S.No.55/1B measuring 2 acres 29 guntas and R.S.No.55/2B measuring -3- CRP No. 100097 of 2021 2 acres 1 gunta situated at Bhutramatti Village, Taluk and District Belagavi.
BRIEF FACTS OF THE CASE:-
2. The petitioners/Decree Holders herein along with two others had filed a suit in O.S.No.214/2010 against the respondent/Judgment Debtor seeking specific performance of a contract which was decreed on 27.08.2012 directing the respondent/Judgment Debtor herein to execute a registered sale deed in favour of the petitioners/Decree Holders after receiving the balance consideration amount of Rs.28,15,000/- conveying the full right, title and interest of the suit property in favour of the plaintiffs within three months. With further order that in case the respondent/Judgment Debtor fails to execute and register sale deed after receiving the balance consideration amount as ordered, the petitioners/Decree Holders would be entitled to get the registered sale deed in their favour by appointment of a Court Commissioner. Aggrieved by -4- CRP No. 100097 of 2021 the said judgment and decree, the Judgment Debtor filed regular first appeal before this court in RFA No.4132/2012.
3. The Division Bench of this Court by its judgment and order dated 11.01.2017, dismissed the said appeal confirming the judgment and decree passed by the Trial Court, however while dismissing, this Court considering the delay on the part of the Judgment Debtor in performing his part of contract had directed him to pay to the Decree Holders interest at 12% on the balance consideration of Rs.28,15,000/- after 15 days from the date of agreement of sale dated 01.02.2005 till the execution of registered deed of sale. It further directed the Judgment Debtor to execute registered sale deed within a period of 3 months from the date of receipt of copy of the order, failing which the Decree Holders were held entitled for the registered sale deed in their favour through the Court on receiving balance sale consideration. Aggrieved by the said judgment and order, the Judgment Debtor filed special leave petition before the Hon'ble Supreme Court in -5- CRP No. 100097 of 2021 SLP No.17485/2017. The said SLP came to be rejected by the Hon'ble Supreme Court by its order dated 11.08.2017. However, modifying the judgment and order passed by the Division Bench of this Court to the extent of interest.
4. The petitioners/Decree Holders soon after passing of the judgment and decree in the above suit in OS No.214/2010 had filed the execution petition in EP No.69/2013. It appears that they had not deposited the balance sale consideration of Rs.28,15,000/- as directed by this Court and the Trial Court in its judgment and decree passed in the aforesaid suit in OS No.214/2010. By the present application filed under Section 151 of CPC on 18.08.2021, the Decree Holders has sought for dispensation of deposit of said sum of Rs.28,15,000/- on the premise that in view of the order passed by the Division Bench of this Court in RFA No.4132/2012, the Judgment Debtor himself is due and liable to pay interest amount which as on the date of the application was in excess of Rs.46,44,750/- as such, Decree Holders sought -6- CRP No. 100097 of 2021 for adjustment and setting of the payment of balance sale consideration. By the impugned order dated 28.09.2021, the Executing Court dismissed the said application filed by the petitioners/Decree Holders and imposed compensatory costs of Rs.75,000/-. It is this order which is called in question in this Revision Petition.
5. Sri.Jagadish Patil, learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition submits that Executing Court failed to appreciate that the Decree Holders have been successful through out the proceedings right upto the Hon'ble Supreme Court and that the Division Bench of this Court while dismissing the regular first appeal filed by the Judgment Debtor had directed payment of interest at 12% per annum on the balance sale consideration from 15 days from the date of agreement which amount has not been paid by the Judgment Debtor and the same has grown over Rs.45 lakhs. He submits that when the Judgment Debtors themselves are due and liable to make the -7- CRP No. 100097 of 2021 payment to the Decree Holders, there is no justification in calling upon the Decree Holders to deposit balance sale consideration. He submits that mere technicality of complying with the decree ought not to have been held against the petitioners/Decree Holders. He further submits that for no fault of the Decree Holders, the Executing Court even while rejecting their application has imposed compensatory costs of Rs.75,000/- and has committed illegality and irregularity warranting interference.
6. Per contra, Sri.Mruthyunjaya Tata Bangi, learned counsel for the respondents submits that notwithstanding the order of Division Bench of this Court directing the respondent/Judgment Debtor to pay interest on the balance sale consideration and the same apparently being in excess of Rs.45 lakhs would not dispense the Decree Holderss to comply with the original decree warranting them to deposit balance sale consideration within the time stipulated. He submits that non-deposit of balance sale consideration has serious consequences. In -8- CRP No. 100097 of 2021 the light of Section 28 of the Specific Relief Act. He submits that by operation of law, the contract stands rescinded. Therefore he submits that the application seeking dispensation of deposit of amount in the first place was not maintainable and no illegality or irregularity can be found in the order passed by the executing court. Hence, seeks for dismissal of the petition.
7. Heard. Perused the records.
8. Scope of this petition under Section 115 of CPC is very limited. It is only on the ground of irregularity or illegality in exercise of jurisdiction by the Executing Court if made out, this court would intervene. The executing court has rejected the application in principle declining the prayer of the petitioner to deposit the balance sale consideration of Rs.28,15,000/-. The executing court has at paragraph 31 of its judgment noted that the plaintiffs/Decree Holders having not deposited the balance sale consideration till date, and on the other hand, are insisting the executing court to direct the Judgment Debtor -9- CRP No. 100097 of 2021 to execute the sale deed free of cost. Perhaps this conduct of the petitioner has weighed in the mind of the executing court to impose compensatory costs of Rs.75,000/-.
9. It is appropriate at this juncture to refer to the judgment of the Coordinate Bench of this Court in the case of T.L.Rajagopal Vs.S.N.Shivakumar reported in 2014(6) KLJ 423, wherein dealing with the scope and jurisdiction of the executing court under Section 28 of Specific Relief Act referring to the judgment of the Apex Court, the Coordinate Bench of this Court at paragraphs 17 and 18 has held as under:
"17. In the light of the ratio laid down in the aforementioned judgments, the law on the point can be said to be fairly settled: a decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The decree-holder chooses to file an execution petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called 'execution proceedings', it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree proceedings. But in a suit for specific performance it is called as 'execution proceedings'. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section of the Act gives equal opportunity to the parties to the suit. If the
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plaintiff-decree-holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant-judgment-debtor to approach the Court under Section of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality.
18. Specific performance being a discretionary relief, the Court has ample power to do justice between the parties, if anyone of them were to not act in terms of the decree. As such the contention that an application under Section of the Act ought to be filed in the suit and not in execution proceedings cannot be accepted. I.A.No.7 filed under Section of the Act by the defendant-judgment-debtor in the execution proceedings seeking rescission of contract therefore is perfectly maintainable and it is to be treated as an interlocutory application filed in the suit for specific performance itself."
10. Reference to the aforesaid judgment is necessitated for the reason that Executing Court continues to exercise discretionary jurisdiction. Inasmuch as execution proceedings in a suit for specific performance is continuation of the suit, the Executing Court continues to have power of original jurisdiction and as noted in the aforesaid paragraphs of the judgment, discretionary power
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CRP No. 100097 of 2021to grant relief of specific performance continue even in the execution proceedings.
11. In the instant case, the petitioners/Decree Holders by filing the aforesaid application under Section 151 of CPC had sought for dispensation of deposit of balance sale consideration for the reason as already noted above. The Executing Court in exercise of its discretionary jurisdiction has declined and rejected the said application. In view of the aforesaid settled principle of law, the order declining to dispense deposit of amount cannot be found to be illegal or irregular. No grounds therefore are made out for interference in the impugned order passed by the Executing Court.
12. However, the imposition of compensatory costs of Rs.75,000/- appears to be too harsh and unwarranted. Order of the Executing Court to the extent of imposing costs of Rs.75,000/-, is set aside. Petition on this count is dismissed, confirming rest of the order of the Executing Court.
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CRP No. 100097 of 2021
13. The respondent/Judgment Debtor have filed application under Section 28 of the Specific Relief Act. Since revision petition is dismissed, the said application does not survive for consideration. However, respondent/Judgment Debtor is at liberty to seek such remedy as may be available under law.
sd JUDGE RH-from para 1 to 2;
KGK-from para 3 till end List No.: 1 Sl No.: 12