Punjab-Haryana High Court
Salwant Singh vs Harinderpal Singh And Others on 24 April, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CR No. 2782 of 2014 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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CR No. 2782 of 2014
Date of decision : April 24, 2014
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Salwant Singh
............Petitioner
Versus
Harinderpal Singh and others
...........Respondents
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CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
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Present: Mr. R.S Chauhan, Advocate for the petitioner.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
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RAJIV NARAIN RAINA, J (ORAL)
Salwant Singh, the present petitioner, holds a conditional decree obtained ex parte from the Court of the learned Additional Civil Judge, Senior Division, Balachaur drawn on 6th February 2006 in a suit for possession by specific performance of an agreement to sell with respect to the suit property executed with Maqsudan Singh on 5th July, 1999 executable on or before 1st November, 2000 which was a Sunday. The petitioner attended the office of the Sub Registrar, Balachaur the following day with the balance sale consideration but Maqsudan Singh did not show up. Civil Suit 223 was instituted on 3rd November, 2003. The death of Maqsudan Singh came to light during service of summons issued by court in Kukreja Ritu 2014.04.29 10:07 I attest to the accuracy and integrity of this document Chandigarh CR No. 2782 of 2014 2 the suit. That is how his legal representatives were brought on record but did not contest the suit after being served through publication in a daily newspaper. Though the suit was decreed but a rider was put by the trial Judge directing Salwant Singh the decree holder to deposit the balance sale consideration of Rs. 50,000/- within a period of one month from the date of ex parte decree and it was directed that thereafter the LRs execute and register the sale deed in favour of the plaintiff in terms of the agreement to sell within a further period of one month, failing which the plaintiff will be at liberty to get the sale deed executed and registered through court. It may be noted that in the suit an alternative prayer was made for recovery of Rs. 2,40,000/-.
The balance amount was not deposited. After a lapse of six years Salwant Singh woke up and filed an application in the disposed of suit to grant him the relief of extension of time to make deposit. The prayer was made under Section 148 of the Code of Civil Procedure, 1908 (for short, `the Code').
Section 148 deals with the power of the Court to enlarge time. The provision reads as follows:
"Where any period is fixed or granted by the Court for doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period [not exceeding thirty days in total], even though the period originally fixed or granted may have expired."
Section 148 would come into play only in a case where any period is fixed or granted by the Code for doing any act prescribed or Kukreja Ritu 2014.04.29 10:07 I attest to the accuracy and integrity of this document Chandigarh CR No. 2782 of 2014 3 allowed by the Court then discretion can be exercised to enlarge time, even though the period originally fixed or granted may have expired.
Section 148 of the Code can be resorted to only where the performance of an act is prescribed or allowed by the Code of Civil Procedure, 1908. In the present case, the direction issued by the trial Judge was in exercise of grant of discretionary relief under the Specific Relief Act, 1963 calling upon the plaintiff to deposit the balance amount in the manner indicated with consequences of failure recorded in the judgment and the conditional decree. The arrangement was simply a court direction with no reference to the Code nor did the Code or its provisions allow or provide for it. Therefore, section 148 is of no avail to the petitioner.
Section 151 of the Code was not availed of and even if were, it would not help due to non-deposit of the balance sales consideration within the time allowed by the Court and with lack of steps taken for the next six years would to my mind plainly disentitle the petitioner to the grant of any further discretionary relief to meet the ends of justice. Justice was done by court but was frustrated by the plaintiff's own conduct. The decree has three limbs; (i) direction to plaintiff to deposit balance sale consideration of Rs. 50,000/- within one month; (ii) the burden would then shift on the defendants being LRs of late Maqsudan Singh to execute sale deed in favour of the plaintiff; (iii) failing which the ball would return to the plaintiff's court to pray for execution and registration of the sale deed through court. The question which arises is as to how the three limbs of the decree are to be read in the light of the Limitation Act, 1963 which allows a decree of a court to be executable within 12 years. Article 136 prescribes:-
"Where the decree or order becomes enforceable or Kukreja Ritu 2014.04.29 10:07 I attest to the accuracy and integrity of this document Chandigarh CR No. 2782 of 2014 4 where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring period, when default in making the payment or delivery in respect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation."
The delivery of property falls for compliance in limb (ii) above, that is, on the LRs of Maqsudan Singh on expiry of the period of one month fixed by the decree. But the defendants were ex parte. When limb (ii) became operational the defendants evidently had no notice of its commencement. Had Rs 50,000/- been deposited by the plaintiff within the time allowed by court, then the LRs deserved to have been put to notice afresh to operate limb (iii). By non-deposit of balance sale consideration by the plaintiff the mechanism of the three limbs of the decree put in place by court order became non-functional by inactivity and that too fortified by six years of slumber. To my mind, the defendants can be imputed only deemed knowledge of the decree through the process of substituted service inferred from publication in an obscure daily newspaper 'Chardikalan' and it is this state of facts which secure to them freedom in absentia from the onerous burdens of the decree. Thus, the defendants cannot be held to be in default of delivery of property within the meaning of article 136 of the Act and therefore the decree cannot be read as one continuing the deeming fiction of ex parte proceedings and the ex parte decree. If limb (i) was not put in motion by the plaintiff to secure the fruit of the decree by the further two Kukreja Ritu 2014.04.29 10:07 I attest to the accuracy and integrity of this document Chandigarh CR No. 2782 of 2014 5 steps he has then apparently given up or should be understood as having given up his rights under the conditional decree. He would then not have protection of the 12 years period prescribed by article 136 of the Act to execute the stillborn decree. To put it in another way; in the Triple Jump sport, the first step is hop, the second is step, the third is jump. If one cannot hop then you cannot step and jump. The game is lost.
Mr. R. S. Chauhan argues that if the application under section 148, CPC had to be dismissed then it could have been treated as an execution application and execution proceedings commenced to satisfy the decree. For one, the petitioner did not take resort to the provisions of Order 21 of the Code. This contention deserves to be rejected following what I have held in the paragraph next above with respect to interconnection and interpaly of the three distinct parts of the chain of directions contained in the decree. If the first limb is a non-starter the other three would become redundant by waiver and surrender of right, the remedy be governed by the doctrine of lapse. No one can take advantage of his own wrong or inaction to cause injury to another and that too by surprise and the principle of unexpected harm. The decree remains on paper but has become a dead letter.
The learned trial Court has found no justification in extending time from one month to six years and particularly when the reasons ascribed for delay in approaching Court were not judicially acceptable. The ground taken in the application by the plaintiff of his travel to Assam soon after the decree in search of livelihood living far away from ground zero of the decreeing court allegedly suffering from 'severe mental depression' with no reliable medical proof presented to the trial court to believe only to return to Kukreja Ritu 2014.04.29 10:07 I attest to the accuracy and integrity of this document Chandigarh CR No. 2782 of 2014 6 his native village in Punjab in January 2012 is not a believable yarn. If he regained consciousness of the existence of the decree by filing the present application by conveniently forgetting to deposit of balance consideration in court does not appear to be be just and sufficient cause to merit any serious consideration or indulgence by the Court. After six years of somnolence the decree though may be final ex parte but has settled valuable rights on the deceased seller of the property's LRs unaware in their wildest dreams that one day they can be visited with destruction from someone who may be unknown to them or long forgotten in memory. The first limb (i) was the key to start the other two limbs. If the key was not put in the ignition system of the court within one month granted, the decree looks like a vehicle with a rusted engine, unserviceable.
I find no ground to interfere with the impugned order passed by the Additional Judge Civil Division, Balachaur on 4th September, 2013. Besides, the present petition under article 227 of the Constitution of India has been filed after about seven months of the impugned order.
In the result, the petition fails and is dismissed in limine as not warranting admission.
April 24, 2014 ( RAJIV NARAIN RAINA )
ritu JUDGE
Kukreja Ritu
2014.04.29 10:07
I attest to the accuracy and
integrity of this document
Chandigarh