Civil Revision No. 4319 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 4319 of 2009 Date of decision : July 23, 2010 Amarjit Singh ....Petitioner versus Jarnail Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. J.K.Khetarpal, Advocate, for the petitioner Mr. CL Verma, Advocate, for the respondent L.N. Mittal, J. (Oral) Decree holder Amarjit Singh has filed instant revision petition under Article 227 of the Constitution of India assailing order dated 16.2.2009 passed by learned executing court i.e. learned Civil Judge (Junior Division), Ludhiana. Facts giving rise to the passing of the impugned order are that suit filed by the petitioner against the respondent for specific performance of agreement to sell was decreed ex parte vide judgment and decree dated 18.2.2006, Annexure P/1, directing the petitioner to deposit/tender the balance sale price of Rs 8600/- within 30 days. The petitioner filed execution petition dated 8.1.2007, Annexure P/2. The petitioner also moved application Annexure P/3 for deposit of the balance sale price and Civil Revision No. 4319 of 2009 -2- accordingly the petitioner deposited the balance sale price of Rs 8600/- on 13.3.2007 vide challan/receipt Annexure P/4. The petitioner moved application Annexure P/5 for condonation of delay in depositing the balance sale price alleging that on account of old-age and ill-health, the petitioner could not deposit the balance sale price in time. The said application has been dismissed by learned executing court vide impugned order and thereby contract between the parties has been rescinded. Feeling aggrieved, the decree holder filed the instant revision petition. I have heard learned counsel for the parties and perused the case file. As mentioned herein above, suit filed by the petitioner was decreed ex parte. Even the impugned order passed by the trial court is ex parte. In the instant revision petition, notice was ordered to be issued to the respondent. The respondent refused to receive the notice. Thereupon respondent could be proceeded ex parte in the present revision as well. However, nevertheless in order to ensure that the ex parte judgment and decree come to the notice of the respondent, vide order dated 11.12.2009 presence of respondent was ordered to be secured through bailable warrant. Pursuant thereto, the respondent put in appearance through counsel on 3.2.2010. Learned counsel for the petitioner states that the respondent has not moved any application for setting aside the judgment and decree dated 18.2.2006, Annexure P/1. Learned counsel for the petitioner contended that the petitioner could not deposit the balance sale price within time on account of old-age and ill-health and therefore, the delay in depositing the balance sale price Civil Revision No. 4319 of 2009 -3- should have been condoned by the executing court and the petitioner should not have been deprived of the fruits of the decree obtained by him in suit filed on 15.6.1994 merely on the basis of a small lapse. On the other hand, learned counsel for the respondent contended that there was delay of almost one year in depositing balance sale price and there is no material on record to substantiate the petitioner's plea of illness for condonation of the said delay and therefore, the executing court has rightly dismissed the petitioner's application for condonation of delay in depositing the balance sale price. I have carefully considered the rival contentions. As noticed herein above, suit was filed by the petitioner against the respondent on 15.6.1994 as revealed by judgment and decree Annexure P/1. The said suit was decreed ex parte on 18.2.2006 i.e. almost 12 years after the filing thereof. The petitioner filed execution petition on 8.1.2007 and deposited balance sale price on 13.3.2007. The respondent even after putting in appearance in the instant revision petition on 3.2.2010 has not moved application for setting aside the ex parte judgment and decree. In addition to the aforesaid, section 28 of the Specific Relief Act, 1963 provides that if the decree holder fails to pay the balance purchase price within the stipulated period, vendor may apply in the same suit in which the decree was passed to have the contract rescinded and on such application, the court may by order rescind the contract. In the instant case, however, respondent judgment debtor (vendor) did not move any application either in the trial court or in the executing court for rescission of the contract under section 28 of the Specific Relief Act, 1963 but in spite thereof, the executing court vide impugned order has rescinded the contract. Civil Revision No. 4319 of 2009 -4- The executing court could not have done so without vendor respondent having made application for this purpose. However, since no such application was moved by the respondent – vendor, there was no occasion for the executing court to have ordered rescission of the contract between the parties. The impugned order is, thus, patently illegal and unsustainable. Since respondent vendor has not initiated proceedings for rescission of the contract till date and since the petitioner decree holder has already deposited the balance sale on 13.3.2007 i.e. more than three years ago and also in view of circumstances pleaded by the petitioner for delay in depositing the balance sale price and keeping in view all other circumstances including the fact that the petitioner obtained the decree after pursuing the suit for almost 12 years, I am of the considered opinion that the delay in depositing the balance sale price is required to be condoned and should have been condoned by executing court. The impugned order as noticed herein above is unsustainable and illegal. For the reasons recorded herein, the revision petition is allowed and the impugned order dated 16.2.2009 passed by the executing court is set aside and application Annexure P/5 moved by the petitioner in the executing court is allowed and delay in deposit of balance sale price is condoned. The executing court shall now proceed further with the execution petition in accordance with law. Parties are directed to appear before the executing court on 24.8.2010. ( L.N. Mittal ) July 23, 2010 Judge 'dalbir' Civil Revision No. 4319 of 2009 -5-