CR No.933 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CR No.933 of 2010 Date of decision : 14.3.2011 Ram Kumar ........Petitioner Vs. Manjit Singh and others .........Respondents CORAM : HON'BLE MR. JUSTICE A.N.JINDAL Present:- Mr.R.K.Handa, Advocate, for the petitioner Mr.Parminder Singh, Advocate, for respondent No.1 Mr.Ajay Nara, Advocate, for Mr.Arun Walia, Advocate, for respondents No.2 & 3 --- A.N.JINDAL, J (Oral) : The petitioner/decree holder (herein referred as the 'petitioner') is aggrieved by the order dated 15.9.2009, passed by the Civil Judge (Junior Division), Karnal (the Executing Court) and dismissing the Execution Application, to execute the sale deed in his favour, as well as application to initiate contempt proceedings against respondent No.3, for not executing the sale deed and the conveyance deed, on the basis of judgment and decree dated 13.4.2007, passed by the Civil Judge (Senior Division), Karnal as well as the decree dated 21.5.2008 passed by Additional District Judge, Karnal. The petitioner, being the decree holder of a plot allotted by the HUDA in the name of respondent No.1, vide allotment letter dated 26.6.1995, is the sufferer. Respondent No.1 had entered into an agreement to sell the plot in favour of the petitioner on 6.12.1999 through Varinder Kumar, Property Dealer, for an amount of `4,75,000/-. On the basis of said agreement to sell, the petitioner had CR No.933 of 2010 -2- filed a suit. Initially, respondent No.1 also in order to comply with the agreement, had sought permission for transfer of ownership of the plot from the Estate Office, HUDA, Karnal, vide letter dated 8.12.1999, which was allowed on 11.1.2000, subject to the condition of deposit of non-construction fee of `28,215/-. Petitioner also did all formalities towards transfer of the plot, but on completion of all formalities, respondent No.1 moved an application before respondents No.2 & 3 to transfer the plot in the name of the petitioner and also executed an indemnity bond as well as affidavit dated 11.1.2000 with respect to full and final payment of the sale price. Both the parties appeared before the Estate Officer, HUDA, Karnal and submitted the required documents. The petitioner deposited `28,215/-on account of construction fee on 9.3.2002. As per earlier policy of HUDA, first of all, respondent No.1 was to get the conveyance deed executed in his favour and thereafter, he was to execute the sale deed in favour of the petitioner. However, later on, respondent changed his mind and did not get the conveyance deed executed from HUDA and to get the sale deed executed in favour of the petitioner despite the repeated requests made by the latter. In the meantime, on 8.3.2000 the HUDA changed its transfer policy, which was challenged by way of Civil Writ Petitions in the High Court and the said writ petitions were allowed. The Special Leave Petition filed by HUDA, was also dismissed. Thereafter, the petitioner also filed a suit for possession by way of specific performance against respondent No.1. The said suit was decreed against respondent No.1 on 13.4.2007 wherein the trial Court had observed as under - “keeping in view the facts and circumstances of the suit in hand and after returning the findings under the aforementioned issues, the suit of the plaintiff deserves for its decretal and accordingly stands decreed with costs in favour of the plaintiff and against the defendant and a decree of possession by way of specific performance of contract is hereby granted in favour of CR No.933 of 2010 -3- the plaintiff and against the defendant qua the plot No.185 situated in Sector 8, Urban Estate, Karnal. However, the defendant is hereby directed to execute the sale deed within the period of three months from the date of passing the judgment and decree, failing which the plaintiff would be at liberty to approach the court agency for executing the sale deed. However, the sale deed will be subject to bearing all miscellaneous expenses, registration and stamp etc. to be borne by the plaintiff as the entire sale consideration has already been paid to the defendant. Decree sheet be prepared. File be consigned to the record room after due compliance.” Aggrieved by the said order, respondent No.1 preferred an appeal, which was also dismissed. However, it was clarified in the judgment dated 21.5.2008, passed by the first Appellate Court that the respondent No.1 was first to get the conveyance deed registered in his favour from HUDA and then he would get the sale deed registered in favour of the petitioner in view of the agreement dated 6.12.1999. If the respondent fails to get the needful done within two months from the date of judgment, the petitioner will be at liberty to get the sale deed executed through the Court of law. This judgment was again challenged by way of Regular Second Appeal before the High Court. The said Regular Second Appeal No.3513 of 2008 was also dismissed on 28.7.2009. It would be pertinent to mention here that since there was no stay order in the Regular Second Appeal, the execution was filed wherein the trial Court directed respondent No.1 to get the conveyance deed executed in his favour by respondent No.2 and then to get the sale deed registered in favour of the petitioner. But respondent No.1 neither got the conveyance deed executed in his favour nor he executed the sale deed in favour of the petitioner. Then vide order dated 7.2.2009 Executing Court appointed Sh.Ram Diya Goel, Judgment Writer as Local Commissioner to get the conveyance deed executed in favour of the CR No.933 of 2010 -4- respondent No.1 on or before 21.3.2009. In the meantime, Sh.Ram Diya Goel, Judgment Writer was transferred. Thereafter, the Executing Court vide order dated 16.5.2009 appointed Mr.Harish Sharma, Judgment Writer to get the conveyance deed executed in favour of respondent No.1. The Local Commissioner could not get the conveyance deed executed as respondent No.3-HUDA (herein referred as 'respondent No.3') had filed a status report stating that as per the raised HUDA extension policy dated 13.10.2006 (Annexure R-2/1) and 2.7.2007 (Annexure R-2/2), extension policy has been reviewed and it has been decided that henceforth no extension shall be granted beyond 15 years including the initial stipulated period of 2 years (2+13) after offer of possession. It is also mentioned in the status report dated 28.5.2009 (Annexure P-2) that respondent No.3 had no power to execute the deed of conveyance and he had referred the matter to respondent No.2, for taking a decision which has not been taken so far. However, without waiting for the decision on the report dated 28.5.2009, made by respondents No.2 & 3, the Executing Court dismissed the execution application vide impugned order dated 15.9.2009. Consequently, the contempt petition while observing that the decree was unexecutable. Arguments heard. Record perused. The facts, as aforesaid, are not disputed by the parties. The petitioner is a bonafide decree holder, having won the litigation wherein the decree for specific performance granted in his favour, was confirmed against respondent No.1. The petitioner cannot be said to be a defaulter whereas malafide designs are writ large as reflected from the facts on the file. Earlier he had supported the case of the petitioner in getting the plot transferred in his favour but later on he changed his mind, which compelled the petitioner to file the suit for possession by way of CR No.933 of 2010 -5- specific performance of the agreement relating to the said plot. Respondent No.1 having failed in his mission, adopted other method for not getting the plot transferred in his name by not depositing the construction fee or getting the extension. A decree obtained by the rightful persons, could not be held to be unexecutable on account of the evil designs and inaction on the part of the fraudulent judgment debtors for not proceeding in a particular manner as directed by the Courts and the Courts in that manner, are not helpless or armless to come at their rescue and by directing the authorities to act in an appropriate and suitable manner so as the decree holder was able to earn the fruits. The trial Court has dismissed the execution alongwith the contempt petition merely on the ground that the extension policy dated 13.10.2006 (Annexure R-2/1) does not provide for granting extension to respondent No.1. First of all, having gone through the policy dated 13.10.2006 (Annexure R 2/1), it is cleared that the policy does not stand in the way for providing extension. However, vide this letter Annexure R- 2/1 dated 13.10.2006 the earlier guidelines were reviewed. The relevant extract of the policy reads as under - “According to regulation 17 of HUDA (Disposal of Land and Building) Regulations framed under HUDA Act, 1977 a period of two years is given to every plot holder (to be reckoned from the date of offer of possession) for the construction of a house. HUDA has formulated and circulated an extension policy whereby a further extension of 20 years beyond the stipulated period of two years was permissible on payment of prescribed extension fee. The above policy guidelines have been reviewed. It has been decided that hence forth no extension shall be granted beyond 15 years including the initial stipulated period of 2 years (2+13 years) after offer of possession. This will make a total period of 15 years either has already been expired or is now expiring on 31.12.2006. It has been decided that all such allottees who CR No.933 of 2010 -6- have already availed a period of 15 years by 31.12.2006, as per this policy, shall have to get their building plans approved before 31.12.2006 positively, Only those allottees who get their building plan approved by 31.12.2006, shall be given an one time extension upto 31.12.2007 to raise/complete atleast minimum required construction on their plots and apply for occupation certificate by 31.12.2007 on payment of prescribed extension fee, which shall be communicated separately. Those allottees who failed to do so, their plots shall be resumed under the provisions of section 17 of HUDA Act for violating the condition of sale by giving them appropriate notice and liberty of being heard in person. For the remaining allottees who have not yet availed the maximum permissible period of 15 years, to be reckoned from the date of offer of possession, may avail maximum permissible extension, on payment of prescribed rates of extension fee, which has been communicated separately.” From the perusal of this Annexure R 2/1, it transpires that respondent No.1 was allotted the plot on 26.6.1995, therefore, the required period of 15 years for extension, for raising construction were to expire on 26.6.2010 but the letter dated 28.5.2009 (Annexure P 2) appears to have been issued against the intent and purport of the HUDA policy dated 13.10.2006. Anyway, counsel has submitted that even now as per amended policy dated 28.8.2009, respondent No.1 could deposit the requisite fee upto 30.11.2009. It is something different that respondent No.1, in order to frustrate the decree, did not deposit the requisite amount, on account of extension fee but, in given circumstances and in order to frustrate the malafide designs of the judgment debtors-respondent No.1, the Court should not stand with gaged eyes, feel helpless and armless to approve the malafides of the fraudulent people, but should come at the rescue of the bonafide decree holders by passing the appropriate orders with a CR No.933 of 2010 -7- view that decrees attained by them after a long contest be honoured and the dignity of the Court is maintained. Since the petitioner was not at fault, and he is still ready to pay any extension fee and comply with other formalities so that the decree could be executed. Since the judgment debtor put off the execution on one pretext or the other, therefore, his such acts not only be discouraged but condemned. It appears that the trial Court was not alive of the sensitivity of the issue and ignored the malafide designs of the judgment debtor and allowed the decree to remain unexecuted. The trial Court also did not take into notice that since Manjit Singh did not comply with the order passed by the Appellate Court, therefore, certainly he was liable to contempt. Consequently, the impugned order deserves to be reversed. In the wake of the aforementioned discussions, this petition is accepted. Impugned order dated 15.9.2009 is set aside and the HUDA would extend two months time for depositing the extension fee during which period the petitioner would deposit the extension fee as demanded by HUDA and in that case respondents No.2 & 3 would issue conveyance deed in favour of respondent No.1 and thereafter, the Executing Court would proceed in accordance with law, for getting the transfer deed, in question, executed in favour of the petitioner by respondent No.1. (A.N.JINDAL) JUDGE 14.3.2011 akm