Civil Revision No. 5048 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5048 of 2006 (O&M) Date of decision : February 03, 2010 Rai Singh ....Petitioner versus Mohinder Singh through his legal heirs ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Rajiv Kataria, Advocate, for the petitioner Mr. JS Brar, Advocate for Mr. RK Battas, Advocate, for the respondents L.N. Mittal, J. (Oral) This is revision petition by Rai Singh judgment debtor (JD) assailing order dated 12.8.2006 passed by the executing court i.e. learned Additional Civil Judge (Senior Division), Patiala. Suit filed by Mohinder Singh respondent (now deceased and represented by his legal representatives) for specific performance of agreement to sell was decreed by trial court vide judgment and decree dated 21.4.1987 and the decree holder (DH) was directed to deposit the balance sale consideration of Rs 1,67,731.25 within two months. The decree holder accordingly deposited the said amount on 18.5.1987. However, both the parties preferred appeals against the judgment and decree of the trial court. Civil Revision No. 5048 of 2006 (O&M) -2- First appeal preferred by JD was dismissed whereas first appeal filed by DH was allowed to the extent of deduction of Rs 45,000/- due to the decree holder from the JD against pronote and receipt. Accordingly, the DH was required to deposit Rs 1,22,731.25 as balance sale price within two months. However, in second appeal this Court vide judgment dated 22.12.1995 restored the decree of the trial court thereby requiring the DH to pay Rs 1,67,731.25 as the balance sale price, to be deposited within two months. The decree holder had filed execution petition which was, however, adjourned sine-die by the executing court on 13.2.1989 in view of interim stay granted by this Court in second appeal. The DH with permission of the court also withdrew the balance sale amount which he had already deposited pursuant to decree of the trial court. Against judgment dated 22.12.1995 of this court passed in second appeal, both the parties preferred Special Leave Petitions (SLPs) in the Hon'ble Supreme Court. SLP filed by JD was dismissed on 30.9.1996 whereas SLP preferred by DH was dismissed on 18.11.1996. Thereafter the decree holder moved application dated 2.4.1997 in the executing court for revival of the execution petition which had earlier been adjourned sine die on account of interim stay. The decree holder thereafter died on 26.5.1997. The executing court requisitioned the file of the execution petition from the record room and thereafter issued notice to JD. After several adjournments for service of JD, the JD put in appearance through counsel on 7.2.1998. The case was then adjourned by the executing court for filing reply to application for impleading legal representatives (LRs) of DH and for filing objections to the execution petition, if any. Ultimately, after seeking many adjournments for this purpose, none appeared for the JD on 28.10.1998 and Civil Revision No. 5048 of 2006 (O&M) -3- the JD was accordingly proceeded exparte. Thereafter, the executing court vide order dated 26.11.1998 allowed application for impleading of LRs of DH and adjourned the case to 16.3.1999 for filing of draft sale deed by the DH. The draft sale deed was filed on 16.3.1999. The executing court vide order dated 7.4.1999 appointed the Reader of the Court as Commissioner for executing the sale deed in compliance with decree. The sale deed was accordingly executed by the Commissioner and report was submitted to the executing court on 11.5.1999. The case was adjourned to 29.5.1999. On 29.5.1999, JD put in appearance through counsel and filed application under section 28 of the Specific Relief Act, 1963 (in short, the Act) read with Order 21 Rule 34(2) and section 151 of Code of Civil Procedure (in short, CPC). Meanwhile, the decree holder moved application dated 7.8.1997 under section 148 CPC in the executing court for extension of time to deposit the balance sale price. The executing court vide order dated 4.9.1997 allowed the DH to deposit the balance sale price at own responsibility. The amount was accordingly deposited by DH on 14.10.1997. Learned executing court vide impugned order dated 12.8.2006 has dismissed the application/objections filed by the JD under section 28 of the Act and Order 21 Rule 34(2) read with section 151 CPC. Feeling aggrieved the JD has preferred the instant revision petition. The JD in the meanwhile transferred the suit land in favour of his sons Pargat Singh and Bhupinder Singh. Bhupinder Singh died un- married and his mother Swaran Kaur (wife of JD) inherited the share of Bhupinder Singh. Pargat Singh and Swaran Kaur also filed objections in Civil Revision No. 5048 of 2006 (O&M) -4- the execution petition and the same have also been dismissed by same impugned order because being transferees pendente-lite, the said objectors were held to be bound by the decree. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that DH was required to deposit balance sale price upto 22.2.1996 i.e. within two months of the passing of judgment dated 22.12.1995 by this Court in second appeal but the DH moved application for extension of time under section 148 CPC in the executing court on 7.8.1997 and deposited the balance amount on 14.10.1997. It was pointed out that the executing court has not even decided the application moved by DH under section 148 CPC for extension of time to deposit the balance sale price. Learned counsel for the JD/petitioner has relied on a judgment of Hon'ble Apex Court in the case of V.S.Palanichamy Chettiar Firm vs C.Alagappan & Anr. 1999(1) Apex Court Journal 248 (SC) and contended that time for deposit of sale price could not be extended. On the other hand, respondents (LRs of DH) have also moved CM No. 2207.CII of 2009 in this Court under section 148 read with section 151 CPC and section 28 of the Act for extension of time to deposit the balance sale price. Learned counsel for the respondents contended that there is sufficient ground for extension of time for deposit of balance sale price and in fact, the executing court by permitting the DH to deposit the balance sale price vide order dated 4.9.1997 impliedly extended the time for deposit of the said amount. It was also pointed out that the amount stands deposited Civil Revision No. 5048 of 2006 (O&M) -5- on 4.10.1997. It was contended that till the execution of the sale deed pursuant to decree under execution, the JD never preferred any objection of non deposit of the balance sale price during the stipulated period although the JD had put in appearance in the executing court on 7.2.1998 and thereafter many adjournments were granted to the JD for filing objections, if any. Learned counsel for the respondents has relied on various judgments in support of his contention i.e. Sardar Mohar Singh versus Mangilal, 1997(1) Apex Court Journal 281 (S.C), Md. Alimuddin versus Waizuddin & Anr. , 1997(1) Apex Court Journal 288 (SC), Sham Kaur versus Malagar Singh and another, 2004(1) S.L.J. 442 and Nanha versus Risala and another, 2007(2) Law Herald (P&H) 1742. I have carefully considered the rival contentions. In my considered opinion, the DH has made out a sufficient ground for extension of time. Suit filed by DH was decreed by the trial court on 21.4.1987. DH was required to deposit the balance amount within two months thereof. DH accordingly deposited the same on 18.5.1987. The said amount remained deposited with the trial court/executing court for more than a year. The said amount was withdrawn by DH with permission of the court apparently in the year 1989 when execution petition was adjourned sine die in view of interim stay granted by this Court in second appeal. After final decision of the second appeal by this Court vide judgment dated 22.12.1995, both the parties agitated the matter before the Hon'ble Apex Court by filing SLPs. After the SLPs were also dismissed the DH filed application dated 2.4.1997 for revival of the execution petition which had earlier been adjourned sine die. However, unfortunately, the DH died on 26.5.1997. His LRs thereafter moved application on 7.8.1997 in Civil Revision No. 5048 of 2006 (O&M) -6- the executing court under section 148 CPC for extension of time. Pursuant to order dated 4.9.1997 passed by the executing court, the decree holder deposited the balance amount on 14.10.1997. In this manner the executing court is deemed to have granted extension of time to the decree holder for deposit of the balance sale price. Learned counsel for the petitioner contended that the amount was ordered to be deposited at risk and responsibility of the DH. However, in the case of Md. Alimuddin (supra) also the executing court ordered the plaintiff to deposit the amount at own risk. Hon'ble Apex Court held that the executing court by passing such order had exercised discretion and allowed the respondents to deposit the balance sale consideration and it amounted to extension of time. In the case of Nanha (supra) also, after the executing court allowed the decree holder to deposit the balance sale consideration (much after the expiry of period granted by the appellate court), the decree holder deposited the balance sale consideration and it was held that it was a fit case where time deserves to be extended. In the case of Sham Kaur (supra) it was held that the court has wide discretion under section 28 of the Act for allowing extension of time. It was also held that once decree for specific performance has been granted and confirmed by the High Court, it would violate the settled cannons of civil jurisprudence if objections filed before the executing court are accepted so as to disturb the settled rights of the parties under the decree. In that case also, extension of time was granted to the DH to deposit the balance sale consideration. In the case of Sardar Mohar Singh (supra), time for deposit of balance sale price was extended even after application by JD for rescission of decree had been rejected. The order was upheld by the Apex Court. Civil Revision No. 5048 of 2006 (O&M) -7- In view of these judgments, in the instant case, the decree holder is entitled to extension of time which is deemed to have been extended by the executing court by permitting the DH to deposit the balance sale price. However, even this Court can allow extension of time by accepting CM No. 2207.CII of 2009 filed by the respondents in the instant revision petition. The same is allowed for the reasons recorded hereinabove. The decree holder secured the decree which was upheld upto this Court. The rights of the decree holder under the decree cannot be disturbed merely because there was some delay in deposit of balance sale price particularly because the DH had earlier also deposited the balance sale price pursuant to decree of the trial court and the said amount remained deposited with the court for more than a year. Judgment in the case of V.S.Palanichamy Chettiar Firm (supra) relied on by the learned counsel for the JD/petitioner is not applicable to the facts of the instant case. In the said case, execution proceedings were initiated after five years of the decree and during the pendency of the execution petition, extension of time was sought and there was no explanation for the same. It was for this reason that extension of time was not granted in that case. The facts of the that case are completely distinguishable from the facts of the instant case. For the reasons recorded hereinabove, I find no merit in the instant revision petition which is accordingly dismissed. ( L.N. Mittal ) February 03, 2010 Judge 'tiwana'