Punjab-Haryana High Court
Mohmad Yussin And Anr. vs Faiz Mohd. on 5 April, 2006
Equivalent citations: (2006)144PLR569
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The challenge in the present petition is to the order passed by the learned Executing Court on 3.6.1993 whereby the objections and the application under Section 28 of the Specific Relief Act, 1963 (hereinafter to be referred as 'the Act') filed by the respondent were accepted and the execution petition was dismissed.
2. A decree for specific performance of agreement dated 14.6.1989 was passed by the learned trial Court on 2.4.1990 on the basis of settlement between the parties. As per terms of the settlement, the plaintiff petitioner was to deposit the balance sale consideration amounting to Rs. 75,000/- within seven days. The petitioner has moved an application on 9.4.1990 for extension of time in deposit of the balance sale consideration which was allowed by the learned trial Court on 16.4.1990. The balance sale consideration has been deposited on 17.4.1990. However, the learned Executing Court accepted the objections dated 2.4.1990 as well as the application under Section 28 of the Act filed by the petitioner-judgment debtor, consequently the decree for specific performance of the agreement is found to be not executable.
3. Learned Counsel for the respondent has raised a preliminary objection that the petitioner has filed appeal before the learned Additional District Judge, Sangrur, in respect of the order passed on application under Section 28 of the Act. The said appeal was dismissed on 10.9.1993 as not maintainable. The petitioner has challenged the order passed by the learned Executing Court on objection dated 2.4.1990 by way of revision petition even before the decision by the learned Additional district Judge in appeal against the order passed on application under Section 28 of the Act. Thus, it is contended that the petitioner having failed to challenge the order passed by the learned Additional District Judge on 10.9.1993, the present petition is not maintainable as a contradictory order has been passed in respect of the objection and the application and, therefore, such order having attained finality on application under Section 28 of the Act, the revision petition will not be maintainable.
4. After hearing of the learned Counsel for the parties, I am of the opinion that the said objection is without any merit. The objections to the execution of the decree filed by the respondent and application under Section 28 of the Act are on the similar lines and, in fact, it was so found by the learned Executing Court on 4.1.1992 on the joint statement of the judgment debtor and the decree holder. Since the objections and the application are based on similar facts and the appeal having been dismissed as not maintainable, the revision wherein the challenge has been made to order dated 3.6.1993 is maintainable. The argument that separate revision was required to be filed in respect of an order passed under Section 29 of the Act is only in respect of the procedure and that again would not be maintainable as the objections and the application, in fact, are to the same effect and decided by a common order.
5. Learned Counsel for the petitioner has vehemently argued that on 9.4.1990 i.e., on the 7th day of deposit of the decretal amount, an application Exhibit DHW-2 was filed for extension of time. On the said application, the learned Court has sought the report of the Ahalmad for 16.4.1990. On 16.4.1990, the learned Court has passed an order Exhibit DH-4 permitting the decree-holder to deposit a sum of Rs. 75,000/-. The amount was deposited the next day i.e. 17.4.1990. It is the case of the petitioner that the balance sale consideration could not be deposited on account of strike of the employees of the Treasury with seven days. To support such fact, the petitioner has produced DW-2 Sukhdarshan Singh, Junior Assistant, Treasury Office, Malerkotla. He has deposed that he alongwith other employees of the Treasury were on strike from 18.3.1990 till 11.4.1990. He has also deposed that certain amount was deposited with the Treasury on 18.3.1990, 20.3.1990, 22.3.1990, 16.3.1990, 27.3.1990 as well as on 9.4.1990 and 10.4.1990. Learned Counsel for the respondent has argued that if that other persons could deposit the amount with the Treasury in spite of the strike of the employees, there was nothing to stop the petitioner to deposit the amount with the Government Treasury.
6. However, I find difficulty in accepting such argument. May be, few persons were able to deposit the amount with the Treasury on account of their efforts or with the cooperation of certain officials of the Treasury but the fact remains that the employees of the Treasury were on strike from 18.3.1990 to 11.4.1990. On account of strike, it may not be impossible but was definitely difficult for the petitioner to deposit the balance sale consideration. The petitioner has moved an application on 9.4.1990 i.e. within seven days of deposit of decretal amount. The petitioner has deposited the balance sale consideration the very next day on which the learned Court has permitted the petitioner to deposit the sale consideration. Therefore, in view of the decision of Hon'ble Supreme Court in Periyakkal v. Dakshyani (sic) cases the Court has the jurisdiction to extend the time for depositing of balance sale consideration. Present is the case where the petitioner could not deposit the balance sale consideration for the reasons which were beyond his control. Therefore, I am of the opinion that the finding recorded by the learned trial court that the learned Executing Court could not extend the time to deposit the sale consideration in any circumstance is not sustainable in law.
7. Still further, the decree-holders are minors. Therefore, the interest of the minor decree-holders cannot be allowed to be jeopardised in the manner in which the judgment-debtor has sought to do so. There is neither any unreasonable delay nor any conduct of the petitioner which may disentitle the petitioner for extension of time in deposit of sale consideration. Consequently, I find that the impugned order passed by the learned Executing court suffers from patent illegality which cannot be sustainable in law and, therefore, the revision petition is allowed and the impugned order is set aside. The time for deposit of balance sale consideration is extended upto 17.4.1990. Consequently, the learned Executing Court to take further action in accordance with law.
The revision petitions stands disposed of accordingly.