Bombay High Court
Vijay S/O Fattuji Bisne vs Dayaram S/O Mahipal Bisne on 15 October, 2018
Author: Rohit B. Deo
Bench: R. B. Deo
1 wp7183.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
WRIT PETITION NO.7183 OF 2017
(Vijay s/o Fattuji Bisne ..vs.. Dayaram s/o Mahipal Bisne)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri S.G. Karmarkar, Counsel for the petitioner,
None for the respondent.
CORAM : ROHIT B. DEO, J.
DATED : 15-10-2018 Heard Shri S.G. Karmarkar, learned Counsel for the petitioner.
2. None appears on behalf of the respondent though the respondent is duly served on 30-5-2018.
3. This Court made it clear in order dated 09-10-2018 that if the respondent is not represented on 15-10-2018, the petition shall be finally disposed of.
4. The petitioner is the plaintiff in Regular Civil Suit 17/2012 instituted against the respondent seeking decree for specific performance of contract and permanent injunction.
5. The suit came to be decreed by the learned Joint Civil Judge (Junior Division), Mohadi by judgment dated 15-6-2016, the operative part of which reads thus :
::: Uploaded on - 16/10/2018 ::: Downloaded on - 17/10/2018 02:15:11 :::2 wp7183.17 "01. Suit is decreed.
02. Defendant to pay cost to the plaintiff and shall bear his own costs.
03. Defendant is directed to execute registered Sale Deed in respect of suit property i.e. towards East-Land of Balaram Bhoyar, West-Land of Plaintiff, North-
Land of Krushnarao Deshmukh, South-Pandhan/road in respect of agricultural land ad-measuring 0.40 H.R. in Survey No.375/2 of Mouza-Takla, Tah. Mohadi, Dist. Bhandara, within two months from the date of this order.
04. Plaintiff is also directed to pay remaining amount of Rs.2,00,000/- to the defendant on the date of sale deed without fail.
05. Defendant shall obtain permission from The Collector, Bhandara in respect of registration of sale deed of the suit property and bear the expenses.
06. Decree be drawn up accordingly."
6. The plaintiff sought to execute the decree in Regular Darkhast 7/2016 which is rejected by the order impugned dated 29-4-2017, which reads thus :
"Read. Perused record. Heard learned counsel for D.H. The J.D. did not appear though served. The directions were given to the D.H. to deposit the balance amount or pay to J.D. but the did not pay or deposit the same in time. Hence, the execution is not maintainable and directions could not be given to the J.D. or A.S./Nazir to execute the sale deed on behalf of J.D. Hence execution /R.D. is disposed of."
7. The submission of Shri S.G. Karmarkar is that the ::: Uploaded on - 16/10/2018 ::: Downloaded on - 17/10/2018 02:15:11 ::: 3 wp7183.17 order impugned is contrary to record and dangerously borders on perversity. Shri S.G. Karmarkar would submit that the judgment and decree directs execution of the registered sale-deed within two months from the date of the order and it is only on the date of the sale-deed that the plaintiff/decree-holder is obligated to pay the balance amount of Rs.2,00,000/-. The submission is that since the defendant/judgment-debtor did not execute the sale- deed, the plaintiff/decree-holder filed execution proceedings and there was no occasion to pay the amount of Rs.2,00,000/-, which amount was payable at the time of execution of the sale-deed.
8. Shri S.G. Karmarkar is right in submitting that the order impugned is manifestly erroneous. It was the defendant/judgment-debtor who was directed to execute the sale-deed in two months and the balance amount of Rs.2,00,000/- was payable at the time of execution of the sale-deed. The executing Court erroneously assumes that the amount of Rs.2,00,000/- was payable by the decree- holder within two months notwithstanding that the judgment-debtor was not inclined to execute the sale- deed.
9. The order impugned is unsustainable and is quashed and set aside.
10. The applications Exhibits 7 and 8 are allowed.
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11. Regular Darkhast 7/2016 is restored to file. The Executing Court is directed to dispose of Regular Darkhast 7/2016 within two months.
12. The parties shall appear before the executing Court on 29-10-2018.
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