IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 CRP.No. 236 of 2005 --------------------- ( AGAINST THE ORDER DATED 07/10/2004 IN IA. 3835 /2004 IN OS.954/1995 of II ADDL.SUB COURT,THRISSUR ) REVN. PETITIONER/RESPONDENT/DEFENDANT. -------------------------------------------------------------------- RADHAKRISHNAN, S/O.MENAMPARAMBIL PANJAN, KADAVILUR VILLAGE & AMSOM, TALAPPILLY TALUK. BY ADV. SRI.T.A.RAJAGOPALAN RESPONDENT/ RESPONDENT/PLAINTIFF ------------------------------------------------------------ VINAYAN, S/O.VAZHAPPILLY VELAPPAN, PANTHALLUR DESOM, CHOWANNUR VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.T.M.CHANDRAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03.04.2008 ALONG WITH CRP NOS. 237 AND 238 OF 2005, THE COURT ONTHE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NOS. 638 OF 2005 & 1404 OF 2007 IN C.R.P.NO.236 OF 2005 DISMISSED. 03.04.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ................................................................................... C.R.P. Nos. 236, 237 AND 238 OF 2005 ................................................................................... Dated this the 3rd April , 2008 O R D E R These revisions arise out of the proceedings in O.S.No. 954 of 1995 on the file of the court of the Sub Judge, Thrissur. The defendant in the suit is the revision petitioner. 2. The suit was filed by the respondent for specific performance of a registered agreement for sale dated 15.10.1994. The extent of the property involved is 6 cents. The property was agreed to be sold for a consideration of Rs.35,000/-, out of which, a sum of Rs. 25,000/- was received by the defendant as advance . On 10.02.1997, the trial court passed a decree for specific performance. The defendant was ex parte. The trial court directed the respondent/defendant to receive the balance consideration of Rs, 10,000/- within one month and to execute the sale deed. It was also held that on failure of the defendant to receive the consideration, the plaintiff/decree holder would be entitled to deposit Rs.10,000/- before the court within one month thereafter to enable him to get the sale deed executed through court. 2. The decree holder/respondent filed I.A.No.5314 of 1998 on 10.11.1998 praying for getting the sale deed executed through court. At that time, the decree holder had not complied with the direction to deposit the balance sale consideration. He did not deposit the amount even at the time of filing of I.A.No. 5314 of 1998. On 04.11.1999, the decree holder filed I.A.No. 5486 of 1999 (dated 26.10.1999 ) seeking extension of time to deposit the balance amount. Though notice was ordered to be issued to the judgment debtor in I.A.Nos. 5314 of 1998 and 5486 of 1999, he was not served with notice. However, on C.R.P. Nos. 236, 237 AND 238 OF 2005 2 28.06.2001, the court below granted time to the decree holder to deposit the amount within 15 days from 28.06.2001. The decree holder did not even comply with that order. He deposited the amount only on 21.07.2001. He did not file an application for extension of time as well to extend the period granted as per order dated 28.06.2001. 3. As per order dated 03.08.2001, the court below dismissed I.A. Nos. 5486 of 1999 and 5314 of 1998. Challenging the order dated 03.08.2001, the decree holder filed C.R.P.No. 3064 of 2001. The Revision was allowed and the orders impugned were set aside. The following directions were also issued while disposing of C.R.P.No. 3064 of 2001. “8. Having regard to the rival submissions, I am inclined to set aside the impugned orders and pass an order of remand subject to the following directions:- 1. The court below will allow the revision petitioner to amend I.A.No.5486 of 1999 or even permit him to file a fresh interlocutory application in its place giving reasons as to why the deposit could not be made within the time stipulated in the decree. 2. The court below will also entertain an application under Section 28(1) of the Specific Relief Act, if such an application is filed by the respondent within three weeks of his entering appearance before the court below pursuant to this order. 3. All the applications will be considered by the court below and disposed of in accordance with the guidelines laid down by the Supreme Court in V.S. Palanichamy Chettiar Firm (supra) and by the Division Bench of this Court in Joseph George (supra) within a maximum period of two months from the date of the parties entering appearance pursuant to this order. The parties will enter appearance before the court below on 01.06.2004. The Civil Revision Petition is disposed of as above. No costs. “ 4. After the disposal of C.R.P.NO. 3064 of 2001, no application for amendment was filed by the decree holder . However, he availed of the liberty granted by this court to C.R.P. Nos. 236, 237 AND 238 OF 2005 3 file fresh applications. He filed I.A.No. 3834 of 2004 on 02.09.2004 for permitting him to file an application for extension of time and filed I.A.No. 3835 of 2004 for extending the time to deposit till 21.07.2001. The prayer for extension was confined to the period upto 21.07.2001 since the decree holder had already deposited the amount on 21.07.2001. The judgment debtor filed I.A.No. 3965 of 2004 on 10.09.2004 to rescind the agreement dated 15.10.1994. That application was filed under Section 28(1) of the Specific Relief Act and Sections 148 and 151 of the Code of Civil Procedure. I.A.No. 3965 of 2004 was filed on 10.09.2004 much beyond the period granted by this court to file an application to rescind. However, the judgment debtor had not filed any separate application for extension of time to extend the period fixed by this court by the order in C.R.P. No. 3064 of 2001 for filing an application to rescind. A specific direction was issued by this court while disposing of C.R.P.No. 3064 of 2001 to the lower court to consider the applications in the light of principles laid down in V.S. Palanichamy Chettiar Firm vs. C. Alagappan [(1999) 4 SCC 702] and in Joseph George vs. Chacko Thomas ( 1992 (1) KLT 6). 5. In I.A.No. 3835 of 2004 filed by the decree holder , he has stated that he was under the impression that the balance sale consideration need be deposited only at the time of filing the petition for execution of the document. However, while filing I.A.No. 5314 of 1998 for that purpose on 10.11.1998, he did not make any deposit. Later on 04.11.1999, the decree holder had filed I.A.No. 5486 of 1999 and as per the order dated 28.06.2001, he deposited the amount only on 21.07.2001. In the present application, viz., 3835 of 2004, he stated that as he was laid up from 10.07.2001 to 21.07.2001 he could not comply with the order dated 28.06.2001 to deposit the amount within 15 days. The decree holder was examined as P.W.1 and the judgment debtor was examined as R.W.1 before the court below. The court below disposed of I.A.Nos. 3834, 3835 and 3965 of 2004 by a C.R.P. Nos. 236, 237 AND 238 OF 2005 4 common order dated 07.10.2004, which is under challenge in these Revisions filed by the judgment debtor. The court below allowed I.A.Nos. 3834 and 3835 of 2004 filed by the decree holder and dismissed I.A.No. 3965 of 2004 filed by the judgment debtor to rescind the contract. 6. The court below did not consider as to why the decree holder did not make the deposit within the period provided in the decree and the court below considered only the explanation offered by him for the delay for the period from 10.07.2001 to 21.07.2001. On considering the evidence of P.W.1 and Exts. A1 and A2, the court below held that the explanation so offered by the decree holder is credible and believable. However, no finding was rendered by the court below as to the delay from expiry of two months from the date of decree till 21.07.2001. While disposing of C.R.P.No. 3064 of 2001, this Court had specifically directed the court below to consider the facts and circumstances of the case in the light of the principles laid down in (1999) 4 SCC 702 and in 1992 (1) KLT 6. This specific and categoric direction was practically ignored by the court below. The court below also held thus: “The evidence of RW1 would go to show that there are circumstances existed so as to rescind the contract dated 15.10.1994.” There is no discussion in the order impugned as to the reason to arrive at this conclusion. However on the ground that the court had allowed the prayer for extending the period to deposit, I.A.No.3965 of 2004 was dismissed by the court below. I am of the view that the court below has not complied with the directions issued by this court in C.R.P.No. 3064 of 2001. The order impugned is therefore liable to be set aside. The court below shall consider and dispose of the applications referred to above, in the light of the directions contained in the order in C.R.P. 3064 of 2001, as expeditiously C.R.P. Nos. 236, 237 AND 238 OF 2005 5 as possible. It is made clear that the narration of facts made herein above is intended for comprehending the facts and the same need not be treated as indication of expression of any view on the merits of the contentions raised by the parties. No order as to costs. K.T. SANKARAN, JUDGE. lk