THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 234 of 2009 Date of order: 12.4.2010 Between: Puli Seetaravamma and others …Petitioners and Kattu Chakravarthi ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 234 OF 2009 ORDER: 1. This is a revision filed by the defendants against the order dated 30.9.2008 passed in a review petition-IA No. 1304 of 2007 in OS No. 27 of 2006 on the file of the Senior civil Judge, Chirala. 2. The suit was filed by the respondent/plaintiff for specific performance of an agreement of sale and the relief sought for in the suit was as follows, “(a) to pass a decree directing the defendants to execute sale deed in favour of the plaintiff in respect of suit schedule property after receiving the balance of sale consideration within the time fixed by the Hon’ble court………….; (b) In case the defendants failed to execute the above said sale deed as directed above the Hon’ble court may itself execute the sale deed for and on behalf of the defendants in respect of the suit schedule property at the costs of the plaintiff; ©……… (d)………. (e)………” The said suit was decreed on 22.6.2007 as follows, 1) that the suit be and the same is hereby decreed; 2) that the defendants be and are hereby directed to execute registered sale deed by receiving the balance of sale consideration within 30 days from the date of this judgment i.e., 22.7.2006; 3) if the defendants failed to do the same the plaintiff can have the registered sale deed through process of the court; 4) that the plaintiff has to deposit the balance sale consideration in court within 15 days from the date of the judgment i.e., 22.6.2007; 5) that the defendants do pay to the plaintiff a sum of Rs.16,878/- towards costs of the suit; do bear their own costs.” 3. Later the respondent/plaintiff filed an application-IA No. 1304 of 2007 seeking the court below to review its judgment by permitting him to claim interest on the balance of sale consideration in terms of the clauses in the suit agreement which are referred to in para-3 © of the plaint. In spite of the petitioners/defendants opposing the said review petition, the court below has allowed the same and in view of the impugned order now passed by the court below, the main relief granted in the suit stands modified as follows, “In the result, suit is decreed with costs directing the defendants to execute registered sale deed by receiving the balance of sale consideration within 30 days from the date of this judgment, failing which the plaintiff can have registered sale deed through process of the Court. The plaintiff has to deposit the balance sale consideration in court within 15 days from the date of this judgment by deducting the interest calculated at 18% p.a. on the advance amount of Rs.4,50,000/- from dt. 22.5.05……” 4. The learned counsel for the petitioners/defendants contends that the said review petition was totally misconceived and it ought not have been allowed by the court below, inasmuch as there is neither any issue nor any adjudication with respect to the interest was made when the suit for specific performance was decreed. 5. Per contra, the learned counsel for the respondent/plaintiff submits that the pleadings of the parties as well as the suit agreement specifically mention the liability of either parties to pay interest @ 18% P.A. in the event of default committed by it. He relies upon the findings of the court below in the suit that the plaintiff has not committed any breach of contract and it is the defendants who committed the breach. The learned counsel, therefore, submits that the court below was justified in giving effect to the terms of the agreement between the parties and as such the impugned order allowing the review petition does not suffer from any infirmity. 6. The question for consideration is, “Whether the court below was justified in entertaining the review petition and allowing it.” 7. The prayer in the suit as extracted above itself would show that irrespective of the terms of the agreement, the plaintiff has approached the court below with a specific suit and with a specific relief that a decree for specific performance be passed against the defendants by directing them to receive the balance of sale consideration within the time fixed by the court. In the suit prayer the plaintiff had never sought for adjustment of interest in the balance of sale consideration payable. Further the agreement between the parties and the time stipulated therein for performance of the mutual obligations did not survive after the suit is filed and even as per the plaintiff, the court had to stipulate the time within which the balance of sale consideration was to be paid and the sale deed was to be executed. The agreement between the parties to the extent of enforcing the interest on each other for default committed by the respective parties, therefore, did not survive when once the suit was filed and more importantly when the suit was tried and decreed in terms of the findings of the court below. The Court below has, therefore, not appreciated these aspects and though there was no issue framed for consideration and though the relief sought for by the plaintiff did not include such a relief which is now sought for under the review, there was neither error apparent on the face of the record nor any other sufficient cause warranting review of the judgment and decree. The impugned order, therefore, is not sustainable on this ground. 8. In addition, the court below ought to have seen that the relief of specific performance is an equitable relief and is governed by the discretionary jurisdiction of the Court under Section 20 of the Specific Relief Act. The relief now sought for by the plaintiff under the review petition, to my mind, would render the relief highly inequitable, inasmuch as the interest under the impugned order on the advance amount from the date of agreement itself @ 18% P.A. and thereby there would not be any balance of sale consideration to be paid by the plaintiff to the defendants. In other words, if the impugned order is sustained, it would be directing the defendants to execute the sale deed in favour of the plaintiff practically without receiving any amount towards sale consideration. The order under review therefore cannot make the main relief granted in the suit inequitable. The main relief was otherwise sustainable on the ground of equity and discretion. The revision petition, therefore, deserves to be allowed. 9. Accordingly the revision petition is allowed and the impugned order is set aside. The respondent/plaintiff is granted two months’ time from today to pay/deposit the balance of sale consideration with the court below in terms of the decree and on such deposit, the petitioners/defendants shall execute a registered sale deed in favour of the respondent/plaintiff by receiving the balance sale consideration, failing which the court below will execute the decree in accordance with law. There is no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 12.4.2010 KR