Civil Revision No.5065 of 2006 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5065 of 2006(O & M) Date of decision: 14.09.2012 Gopal Singh .....Petitioner Versus Sukhi Ram and others ..... Respondents Coram: Hon'ble Mr. Justice S.S. Saron Present: Mr. P.R. Yadav, Advocate for the petitioner Mr. Jaivir Yadav, Advocate for respondents No.1 to 8 *** S.S. Saron, J. The civil revision petition has been filed under Article 227 of the Constitution of India by Gopal Singh [defendant/ petitioner/ Judgment Debtor (JD)] seeking setting aside of the order dated 09.09.2006 (Annexure P-11) passed by the learned Civil Judge (Senior Divison), Mohindergarh whereby objections raised by the petitioner/JD against the execution of the decree dated 29.04.1992 (Annexure P-2) passed by the learned Additional District Judge, Narnaul have been dismissed. Sukhi Ram, Ram Chander, Singh Ram sons of Ghisa Ram; Krishan Pal, Balbir sons and Smt. Vidya Devi, widow of Ragubir Singh son of Ghisa and Rohtash son of Ghisa Ram Ahir (plaintiffs/respondents No.1 to 7) filed a civil suit i.e. Civil Suit No.685 on 15.06.1985 seeking possession of agricultural land Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -2- measuring 8 kanals comprised in khewat No.119, khatuni No.142, rectangle No.53 khasra No.8 (8-0) situated in Village Pathera, Tehsil and District Mohindergarh as per jamabandi for the year 1981-82 by way of specific performance of an agreement to sell dated 22.08.1984. The land was agreed to be sold to the plaintiffs/decree- holders (DHs) for total sale consideration of Rs.17,000/- by paying the balance amount of Rs.5,000/- after deducting Rs.10,000/- as earnest money already paid and Rs.2,000/- as mortgage money which the defendant/JD was liable to pay to the plaintiffs/DHs. An alternative prayer was made by the plaintiffs/DHs in the said suit for recovery of Rs.17,000/- i.e. Rs.10,000/- as earnest money paid in terms of the agreement and Rs.2,000/- paid as mortgage money; besides, Rs.5,000/- as costs. Gopal Singh, the petitioner/JD had after execution of the agreement to sell on 22.08.1984 had transferred the land in favour of his minor sons Babu Singh and Rajpal Singh (defendants No.2 and 3) by way of a collusive decree dated 26.02.1985. Therefore, a further prayer was made for declaration to the effect that the judgment and decree dated 26.02.1985 passed in Civil Suit No.147 dated 19.02.1985 titled as Babu Singh etc. versus Gopal Singh passed through Gopal Singh (petitioner/defendant No.1) in favour of Babu Singh and Rajpal Singh minor sons of Gopal Singh (defendants No.2 and 3/proforma respondents No.9 and 10) by the learned Sub Judge Ist Class, Mohindergarh regarding the disputed land was collusive, based on fraud and misrepresentation and had been obtained to defeat the agreement to sell and the same was null and void and only a paper Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -3- transaction and not binding on the rights of plaintiffs-Sukhi Ram and others and proforma defendant and the same was liable to be set aside. The aforesaid suit of the plaintiffs/respondents No.1 to 7 was dismissed by the learned Sub-Judge Ist Class, Mohindergarh vide judgment dated 02.08.1990. Aggrieved against the same, the plaintiffs/respondents No.1 to 7 filed an appeal i.e. appeal No.320 of 1990 in the Court of learned District Judge, Narnaul. The said appeal was allowed by the learned Additional District Judge, Narnaul vide his judgment and decree dated 29.04.1992 (Annexures P-1 and P-2). It was held that the plaintiffs/respondents No.1 to 7 were entitled to get the sale deed executed and registered in their favour after paying Rs.5,000/- to Gopal Singh (petitioner/JD) as the remaining sale price of the suit land. The appeal of plaintiffs/ respondents No.1 to 7 was accepted and the suit filed by them after setting aside the judgment and decree dated 02.08.1990 passed by the learned trial Court/Sub Judge Ist Class, Mohindergarh was decreed in toto in their favour. The parties were left to bear their own costs. The plaintiffs/DHs (respondents No.1 to 7) thereafter on 25.07.1992 filed an execution petition No.41 before the Executing Court. In the said petition, Gopal Singh (petitioner/JD) made a statement dated 18.12.1993 (Annexure P-3) stating that his appeal in the High Court had been dismissed and that he was ready for registry. He would remain present in the office of Sub Registrar on 20.12.1993. Shri B. R. Yadav, Advocate, the learned counsel for Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -4- the decree-holder stated that his client was not present in Court on the said date i.e. 18.12.1993. It was, however, stated that they were ready for registry but he could not call his client till 20.12.1993 and that a date be given. Gopal Singh (petitioner/JD) further stated on 18.12.1993 itself that he would come present in the office of Sub Registrar for getting the sale deed registered. The learned Executing Court/Sub Judge Ist Class, Mohindergarh on 18.12.1993 passed an order (Annexure P-4), which was to the effect that both the parties were ready and willing to get the sale deed executed and registered. The statements of the judgment debtor Gopal Singh (petitioner) and Shri B. R. Yadav, learned counsel for the decree-holder to this effect were recorded. In the light of the said statements of Gopal Singh (JD) and Sh. B. R. Yadav, both the parties were directed to appear before the Sub Registrar, Mohindergarh for the purpose of execution as well as registration of sale deed in question on 10.01.1994. The case file it was ordered shall be put up on the said date i.e. 10.01.1994 accordingly. According to the petitioner/JD, the amount was never paid by the DHs/respondents No.1 to 7 to him although he appeared before the Sub-Registrar on 10.01.1994 and remained present there for the entire day. However, the decree-holders did not come present. It is stated that one of the decree-holders i.e. Rohtash Singh (DH/respondent No.7) appeared before the Executing Court on 22.01.1994 and he made a statement (Annexure P-5) stating that regarding the disputed land for which a Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -5- decree for specific performance had been passed, Vijay Singh son of Munshi Singh (i.e. the brother of Gopal Singh petitioner/JD) had taken loan on the disputed land from the P.L.D.B. (Primary Land Development Bank). Therefore, it was necessary to get the disputed land cleared from the loan by filing suit against Vijay Singh (brother of the petitioner). It was further stated that until and unless there was an entry regarding loan in the revenue record, the sale deed could not be registered and, therefore, the execution petition be filed. After getting it cleared from the loan, it was stated that the execution petition would be filed again. The statement of Rohtash Singh (DH/respondent No.7) was recorded. Gopal Singh (petitioner/JD) on the same day i.e. 22.01.1994 made a statement (Annexure P-6) that he had not mortgaged the land in dispute and that he was ready to get the sale deed registered on 10.01.1994 and even prior to that; besides, on that day i.e. 22.01.1994 also he was ready to do so, whereas the decree-holders were not getting the sale deed registered deliberately. Therefore, the execution petition, it was stated, be dismissed on merits. The learned Executing Court in its order passed on 05.03.1994 (Annexure P-7) noticed that the execution petition was filed by Sukhi Ram (DH/respondent No.1) on 25.07.1992. The DH by the execution petition had sought execution of the decree dated 29.04.1992 (Annexure P-2) passed in Civil Appeal No.32 of 1992 titled Sukhi Ram and others v. Gopal and others. The said judgment and decree dated 29.04.1992 (Annexures P-1 and P-2) was passed Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -6- by the learned Additional District Judge, Narnaul. In compliance with the aforesaid decree, the JD, it was observed, was required to get the sale deed registered in favour of the DH on payment of Rs.5,000/- being the remaining sale consideration amount of land measuring 8 kanals 0 marlas. During the pendency of the petition, it was revealed that Shri Jaipal Singh (sic. Vijay Singh, brother of the JD) had taken a loan of Rs.15,000/- from the Primary Land Development Bank, Mohindergarh. This was taken after mortgaging the suit land. Therefore, Shri B. R. Yadav, learned counsel for the DH had contended that untill and unless the mortgage in question was redeemed, the sale deed in favour of the DH could not be effected. He also contended that in case the DH was allowed to get the sale deed registered then the DH would have to pay the said mortgage money of Rs.15,000/- plus interest. Therefore, Shri Yadav submitted that prior to execution and registration of sale deed, the DH (sic. JD) was bound to file a suit seeking redemption of mortgage of the suit land after impelading the said Bank and Jaipal (sic. Vijay Singh) as parties. The said request, however, was opposed by Shri B. P. Vashisht, Advocate, learned counsel for the JD on the ground that the JD was ready and willing to get the sale deed executed and registered on 10.01.1994 and was still ready and willing to get the sale deed registered. Therefore, according to Shri B.P. Vashisht, Advocate, the execution petition was liable to be dismissed on merits. The learned Executing Court considered the controversy, as to whether the decree-holder was to be allowed to withdraw the Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -7- execution petition as had been requested by statement dated 22.01.1994 (Annexure P-5). After hearing both the parties at length the learned Executing Court concluded that the contention raised by Shri B. R. Yadav, Advocate, learned counsel for the DH was full of merit. Therefore, in the light of the statement dated 22.01.1994 (Annexure P-5) of Rohtash Singh (DH/respondent No.7), the execution petition was dismissed as withdrawn with no order as to costs. The DHs/respondents No.1 to 7 thereafter filed a second execution petition (Annexure P-8) on 31.05.1997. The facts were restated. It was submitted that execution of the decree was filed on 25.07.1992, which was dismissed as withdrawn on the statment of the DH made on 05.03.1994 (Annexure P-7). The other co-sharers, had taken loan on the disputed land; therefore, the earlier application was withdrawn. The loanee had, however, got the loan amount deposited on 13.05.1997. The disputed land comprised in rectangle No.53 khasra No.8 measuring 8 kanals was free from charge. A photostat copy of the clearance certificate issued by the Primary Land Development Bank, Mahendergarh was attached. It was submitted that the DHs now wanted to get the sale deed executed as per order of the Court. Accordingly, it was prayed that the sale deed of the disputed land be got executed and registered in favour of the decree-holder and proforma defendants for sale consideration of Rs.17,000/- out of which Rs.12,000/- had already been paid and Rs.5,000/- was to be paid and possession with the rights of ownership was liable to be got handed over to them. Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -8- The petitioner/JD filed objections (Annexure P-9) to the execution petition on 06.10.2004 by raising specific objections that DHs/ respondents No.1 to 7 had not complied with the decree under execution as they had, as per the decree, not paid the amount of Rs.5000/- to him. The same had also not been deposited in the Executing Court. Besides, no such notice to this effect had been issued to the defendant/JD. This meant that the DHs had not complied with the condition of the decree. Therefore, the execution petition was not maintainable and was liable to be dismissed. It was further mentioned that the decree-holders had earlier filed execution petition No.41 dated 25.07.1992 and in the said petition also Rs.5000/- were not deposited. The same was also not given to the petitioner/JD. Besides, petitioner/JD had always been ready to perform his part of the contract. In the earlier execution petition, he had given a statement on 18.12.1993 (Annexure P-3) before the Court and he remained present in the office of Sub Registrar, Mohindergarh on 10.01.1994 from 9.00 am to 5.00 pm for getting the sale deed registered but the DHs did not come present to perform their part of the contract. The balance amount of Rs.5,000/- was not paid to the petitioner/JD. Thus the DHs were deliberately defaulting in peforming their part. Therefore, the petition, it was submitted, was not maintainable and liable to be dismissed. It was further stated that the earlier execution petition was got dismissed by the DHs by giving a statement on 22.01.1994 (Annexure P-5). It was mentioned that even on 22.01.1994, the petitioner/JD was ready to get the sale deed registered. He was Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -9- even ready on 10.01.1994 and thus he had always been ready to perform his part of the contract in the earlier execution petition but the DHs/respondents No.1 to 7 deliberately did not pay the balance amount of Rs.5,000/- nor was the same deposited in Court and no such prayer was even made before the Court. Therefore, the DH had deliberately not complied with the conditions of the decree. On this account, they had no right to file the subsequent petition (Annexure P-8). Besides, the market value of land was then not less than Rs.3,00,000/-. The DH had no right to get the sale deed registered and the agreement to sell stood rescinded due to the default committed by the DH. The execution petition was not maintainable and was liable to be dismissed. Keeping in view the above mentioned facts it was submitted that the petitioner/JD was not bound to get the sale deed executed as the DHs had not complied with their part of the contract. They had then got no right to get the sale deed executed because the market value of the disputed land had increased, which was then not less than Rs.3.00 lacs. The earlier petition it is stated was got dismissed as withdrawn by the DH without any reason. Therefore, from the act and conduct of the DH, the present petition was not maintainable and was liable to be dismissed. By filing the objections, it was stated that on the basis of the same, the execution petition was not maintainable, the same was contrary to law and it be dismissed. Besides, the agreement to sell and the decree be rescinded under Section 28 of the Specific Relief Act, 1963 ('Act' - for short). Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -10- The decree-holders filed their reply dated 30.10.2004 (Annexure P-10) to the objections under Section 28 of the Act. The objections raised were denied. It was submitted that the averment of the petitioner/JD that the DH were not complying with the order of the learned Court was totally wrong. The DH had always been ready to deposit the amount as per order of the Court and were ready on the date of filing the objections also. The story set up by the petitioner/JD in the objections, it was stated was contrary to law and facts and the same had no basis. The averment that the petitioner/JD had always been ready to perform his part of the contract was totally wrong. The petitioner/JD, it was mentioned, was a very cunning and intelligent person and was not getting the sale deed executed despite the fact that the decree was in favour of the DHs. The defendants had in connivance taken a loan on the disputed land through the shareholders. Due to the taking of loan, the sale deed could not be executed in favour of the DH. The defendants/JDs did not intend to get the sale deed executed and for the said reason they secured a loan on the land and caused hinderances; therefore, the execution petition was withdrawn. It is after the loan had been cleared that the execution petition was filed by the DHs for registration of sale deed in their favour to which they were legally entitled. The averment and story of the defendants that they remained present in the office of Sub-Registrar from 09.00 am to 05.00 pm for getting the sale deed registered was stated to be fabricated and it had no basis. The execution petition was not liable to be dismissed in any form. A detailed order had Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -11- been passed by the learned Court while dismissing the earlier execution petition. It is after the clearnance of the loan that a subsequent petition was filed. The DHs had full right to get the sale deed executed in their favour. The defendants were prolonging the execution proceedings without any reasons. A period of about fifteen years had passed since the passing of the order but the defendants caused one hindrance or the other and were not getting the sale deed executed whereas the DHs had full legal right to get the sale deed executed. The objections of the defendants were based on mala fide and wrong facts and were liable to be dismissed. The defendants were bound by the judgment and decree passed by the learned Court in every respect. They were liable to get the sale deed executed in favour of the DHs but they were not doing so deliberately by posing one or the other hinderances. This was being repeated for the last fifteen years. They had then filed objections on false basis and wrong facts. They had wrongly mentioned that the DHs were not performing their part of the contract. The execution petition of the DHs was liable to succeed. The averment of the defendants that the market price of the land had increased was totally wrong. The execution petition was not beyond limitation but the same had rightly been filed and the defendants were bound by that in every circumstances. The defendants never made a prayer for depositing the amount. The averments in this regard of the defendants were wrong. The DHs had always been ready and willing to deposit/pay the amount and they were ready on the said date also. Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -12- The learned Executing Court vide impugned order dated 09.09.2006 (Annexure P-11) dismissed the objections of the petitioner and directed the decree-holders to deposit the balance amount in Court after deducting the cost of the suit and further the petitioner/JD was also directed to get the sale deed executed in favour of the decree-holders within a period of one week otherwise the Court would executed the sale deed on behalf of the JD after appointment of a Local Commissioner. The said order dated 09.09.2006 (Annexure P-11) is assailed by the petitioner. Learned counsel for the petitioner has submitted that since 29.04.1992, the decree-holders never performed their part of the contract by way of paying the balance amount of Rs.5,000/- and now after lapse of more than 14 years, the learned Executing Court had directed the decree-holders to deposit the amount when the market value of the property had increased manifolds and in view of the conduct of the DHs/respondents No.1 to 7, the contract was liable to be rescinded; besides, in terms of the statement (Annexure P-3) made by the parties on 18.12.1993, the sale deed was to be registered on 10.01.1994 but the decree-holders never came to perform their part of the contract. As regards taking of loan by Vijay Singh (Jaipal Singh) brother of the petitioner, it is submitted that the same was of no consequence as he had taken loan only as regards his share and the petitioner/JD had made a categorical statement that he had not mortgaged the disputed land and that the DHs/respondents No.1 to 7 were deliberately not getting the sale deed registered. It is submitted that the Executing Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -13- Court did not discuss in the impugned order, the statements made by the DHs/respondents No.1 to 7 as well as that made by the petitioner/ JD which goes to the root of the matter and it failed to take notice of the fact that the amount was never deposited/paid by the DHs/respondents No.1 to 7 for more than 14 years. It is submitted that it is settled law that where no time was prescribed the decree-holders was liable to deposit the balance amount within a reasonable period failing which the contract was liable to be resended. Learned counsel for the petitioner cites Bhajan Singh @ Harbhajan Singh v. Gurbax Singh, 2001 (4) RCR (Civil) 102 (P&H); Onkar Nath and another v. Basheer and others, (1985-2) PLR 432 (P&H) and Chanda v. Rattni, 1999 (4) RCR (Civil) 621 (P&H). In response learned counsel for the respondents has submitted that the petitioner was always ready and willing to perform his part of the contract and it is only because the land which was agreed to be sold was under loan with the Primary Land Development Bank that the sale deed could not be executed. The brother of the petitioner had obtained a loan for an amount of Rs.15,000/- from the Bank against this land. It was for the said reason that the DHs were allowed to withdraw the earlier execution application vide order dated 05.03.1994 (Annexure P-7). Later on the brother of the petitioner deposited the loan amount in the Bank and thereafter the fresh application (Annexure P-9) was filed on 31.05.1997 to execute the judgment and deree dated 29.04.1992 (Annexures P-1 and P-2) passed by the learned Additional District Judge, Narnaul. Amit Kaundal 2018.03.26 12:45 I attest to the accuracy and integrity of this document Civil Revision No.5065 of 2006 (O & M) -14- I have given my thoughtful consideration to the matter and with the assistance of learned counsel for the parties gone through the records of the case. As has already been noticed, the DHs/respondents No.1 to 7 filed suit for possession by way of specific performance of the agreement to sell dated 22.08.1984 regarding agricultural land measuring 8 kanals comprised in rectangle No.53 khasra No.8 (8-0) situated in Village Pathera Tehsil and District Mohindergarh for a total consideration of Rs.17,000/- by paying Rs.5,000/- after deducting Rs.10,000/- paid as earnest money and Rs.2,000/- as mortgage money and in the alternative for recovery of Rs.17,000/- i.e. Rs.10,000/- paid as earnest money paid under the agreement, Rs.2,000/- as mortgage money and Rs.5,000/- as costs. A further prayer was made for declaring the judgment and decree dated 26.02.1985 passed in Civil Suit titled Babu Singh versus Gopal Singh through Gopal Singh (petitioner/JD) in favour of Babu Singh and Rajpal Singh sons of Gopal Singh defendants No.2 and 3/ respondents No.9 and 10 being collusive, based on fraud and misrepresentation and having been obtained to defeat the agreement to sell, besides, being null and void and only a paper transaction and not binding on the rights of plaintiffs. The suit of the plaintiffs/respondents No. 1 to 7 was dismissed by the learned Sub Judge Ist Class, Mohindergarh vide