IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 07.07.2010 C.R.No.705 of 1993 Narinder Singh ...Petitioner Versus Amar Singh ...Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. D.S.Bali, Sr. Advocate, Mr. Salil Bali, Advocate, for the petitioner. Mr. S.K.S.Bedi, Advocate, for the respondent. HEMANT GUPTA, J. (Oral) Challenge in the present revision petition is to the order passed by the learned Executing Court on 3.2.1993, whereby the Executing Court held that the judgment-debtor cannot be compelled to execute the sale deed in favour of the decree-holder regarding the suit property owing to defect of the title of the judgment debtor and that decree-holder is only entitled to recover Rs.64,000/- from judgment-debtor. The plaintiff-petitioner filed a suit for specific performance of an agreement to sell dated 18.01.1986. Vide the aforesaid agreement, the plaintiff alleged that the defendant agreed to sell land measuring 15 kanals 6 marlas on receipt of Rs.32,000/- as earnest money. The sale deed was to be executed on or before 5.6.1986 on payment of remaining sale consideration, which as per the petitioner comes out to be Rs.44,500/-. The defendant raised a plea that he is owner to the extent of ½ share of the land only. But C.R.No. 705 of 1993 the said plea of the defendant was negated in the suit, which was decreed in its entirety by the learned trial Court on 2.12.1989. The operative part of the decree reads as under : “It is ordered that the suit of the plaintiff be decreed accordingly with costs of the suit. The decree for possession to the land mentioned in the head note of the plaint together with costs of the suit is passed in favour of the plaintiff and against the defendants and also in case because of some defect subsequently if the sale deed could not be executed, then in the alternative the plaintiff will be entitled to decree of Rs.64,000/- together with costs of the suit.”. Aggrieved against the judgment and decree, the defendant filed an appeal before the learned first Appellate Court. The learned first Appellate Court again negated the plea of the defendant that he is owner to the extent of 1/2 share vide judgment and decree dated 26.8.1992. The operative part of the decree reads as under : “It is ordered that the appeal of the defendant-appellant is dismissed with costs with the modification of the judgment and decree of the lower Court that the plaintiff-respondent will get the sale deed executed due to some defect of the title of the defendant-appellant, the plaintiff-respondent will be entitled to recover Rs.64,000/- in the alternative relief.” After the dismissal of first appeal, the decree-holder sought the execution of the sale deed by seeking execution of the decree on 22.9.1992. In the aforesaid proceedings, the learned Executing Court returned a finding that the defendant is owner to the extent of 1/2 share and, thus, title of the defendant was defective. Therefore, the plaintiff is entitled to recover Rs.64,000/- only. It is the said order, which is subject matter of challenge in the present revision petition. 2 C.R.No. 705 of 1993 Learned counsel for the petitioner has raised two-fold arguments. Firstly that the Executing Court could not go into the question; whether the defendant was owner of 1/2 share of the suit land as an issue raised to this effect has been specifically answered against the defendant. It is contended that it is well-settled that Executing Court cannot travel beyond the decree passed. Since a specific plea raised by the defendant in respect of his 1/2 share has been negated by the trial Court and affirmed in first appeal. Therefore, the Executing Court could not examine the said question. Alternatively, it is argued that even if the defendant is owner of 1/2 share, the plaintiff is ready and willing to get the sale deed executed of his 1/2 share and on payment of entire sale consideration. Reliance is placed upon the provisions of Section 12(3) of the Specific Relief Act, 1963 and the judgments reported as Rachakonda Narayana Vs. Pontnala Parvathamma and another 2001(8) Supreme Court Cases 173 and Smt. Harnam Kaur and others Vs. Jagtar Singh 1991 PLJ 604. Mr. Bedi, learned counsel for the respondent has vehemently argued that the petitioner has not relinquished un-enforceable part of the agreement at any time before the hearing of the present revision petition, therefore, the petitioner is not entitled to seek the execution of the decree to the extent of 1/2 share on payment of entire sale consideration. It is also argued that the plaintiff was expected to deposit the balance sale consideration within a period of six months, as directed by the learned first Appellate Court, but having failed to do so, the plaintiff is not entitled to decree for specific performance. It is also argued that it will be wholly inequitable to grant decree for specific performance after more than 20 years of the agreement having entered between the parties. 3 C.R.No. 705 of 1993 Though there is some merit in the argument raised by the learned counsel for the petitioner in respect of availability of an objection that the defendant was not owner to the extent of 1/2 share, but it is also well-settled that an owner can convey title to the extent of which he is the owner. In view of the said fact, the petitioner having opted to seek execution of the decree to the extent of 1/2 share of defendant, admittedly owned by the defendant, but on payment of entire sale consideration as per the terms of agreement to sell dated 18.1.1986, is entitled to specific performance of the agreement and, consequently, seek execution of the decree. Sub-Section 3 of Section 12 of the Specific Relief Act, 1963 (for short ‘the Act’) deals with a situation, where the agreement executed is proved to be executable qua share of one or the more vendors. Considering the aforesaid provisions, a Division Bench of this Court in Smt. Harnam Kaur’s case (supra) has held to the following effect: “7. From a reading of the above-quoted passage, it is clear that the Lahore High Court as also the Hon’ble Supreme Court have pointedly held that the relinquishment envisaged under Section 12 of the Act can be made at any stage of the suit or appeal. We find that this interpretation is not only equitable but flows from the nature of the relief that is available to a party, who is aggrieved on account of the default of the other party on a contract. We find that to confine a reading of the pleadings into a strait jacket and to construe them rigidly and mechanically would defeat the ends of justice and limit artificially the scope of Section 12 of the Act. It is to be borne in mind that a plaintiff seeking the benefit of Section 12 of the Act is already a substantial sufferer, inasmuch as he has agreed to take a smaller portion of the property while paying the full amount and if the Court has to hold that the pleadings must be strictly construed (where even the acceptance of a truncated 4 C.R.No. 705 of 1993 portion must be pleaded in the plaint) would be to add insult to injury. We have considered the other two judgments cited before us i.e. Balmukand Vs. Kamla Wati, AIR 1964 SC 1385 and Devi Dayal Vs. Manohar Lal, 1982 CLJ (C&Cr.) 83. The question as to the stage at which the relinquishment can be made was not specifically raised before the Supreme Court in Balmukand’s case (supra). In Devi Dayal’s case the question was specifically raised but the judgments reported as Waryam Singh Vs. Gopi Chand, AIR 1930 Lahore 34 and Kalyanpur Lime Works Vs. State of Bihar, AIR 1954 SC 165 were not cited before the learned single Judge. We, therefore, hold that the relinquishment under Section 12 of the Act can be made at any stage of the suit or appeal and it is not necessary to incorporate the plea specifically in the pleadings.” The provisions of Section 12 (3) of the Act have also come up before the Hon’ble Supreme Court in number of judgments. The Hon’ble Supreme Court in Rachakonda Narayana’s case (supra) has held to the following effect : “9. Now, the question is whether relief under Section 12(3) of the Act is required to be pleaded in the plaint when the suit is laid or it can also be taken at the appellate stage. The view taken by the High Court is the readiness and willingness to perform the terms of the contract by the plaintiff based on latter part of sub-section (3) of Section 12 must be pleaded in the plaint itself when the suit is laid and in its absence the relief being discretionary cannot be granted by amendment of the plaint at the appellate stage. In Kalyanpur Lime Works Ltd. Vs. State of Bihar and another 1954 SCR 958, identical question came up for consideration before the Supreme Court. In the said case, the Apex Court held that relief based on Sections 13, 14, 15 and 17 of the Specific Relief Act, 1877 can be granted at any stage of the litigation. In A.L.P.Parthasarathi Mudaliar Vs. Venkata Kondiah Chettiar AIR 1965 Madras 188, it is held that it is open to plaintiff to relinquish the part of the 5 C.R.No. 705 of 1993 performance of the contract after paying the entire consideration of the contracted amount at the appellate stage of the proceedings if the defaulting party is not capable to perform the whole of the contract. 10. We are in agreement with the statement of law expressed in the aforesaid decision. In the present case, what we find is that it was for the first time at the appellate stage, the defendant No.1 stated that he had no title in respect of Plot ‘B’ Sivaijama land which belonged to his first wife and his wife has refused to assign the said plot of land in his favour. It is on account of the said statement the plaintiff filed an application for amendment of the plaint relinquishing his claim in respect of ‘B’ plot of land as well as compensation for the loss he sustained for non-performance of part of the contract while agreeing to pay the entire contacted amount. ……” A Larger Bench of three Judges’ of Hon’ble Supreme Court in Surinder Singh Vs. Kapoor Singh (D) through LRs and others 2005(5) SCC 142 referring to the provisions of Section 12 (3) of the Act, has held to the following effect : “8. Section 12 (3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the appellant herein was not authorized by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12 (3) (ii) of the Act as regards performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay be itself, it is trite, may not stand in the way of the plaintiff claiming the relief unless the defendant establishes prejudice.” 6 C.R.No. 705 of 1993 Thus, the relinquishment envisaged under Section 12 (3) of the Act can be made at any stage in the suit or appeal. In the present case, in suit and in appeal, a finding was recorded that the defendant is the owner of the entire property. Therefore, there was no occasion for the plaintiff to relinquish as contemplated under Section 12(3) of the Act. The first Appellate Court decree in a way permitted the question of defect of title of the defendant to be examined in execution proceedings. Therefore, though in the suit a finding was returned that the judgment debtor is the owner of the entire property, but in view of the liberty granted by the first Appellate Court, the question of title of the defendant became open to examination. Since the question became open in execution, the principle which is applicable at the stage of suit or appeal would continue to apply during execution proceedings. According to Section 141 of the Code of Civil Procedure, the procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Therefore, the relinquishment could be made in execution proceedings particularly when such question was kept upon for decision in execution proceedings as well. It may be noticed that the plaintiff has sought execution of the sale deed by seeking execution on 22.9.1992 i.e. within one month of the decree being modified by the learned first Appellate Court. The learned first Appellate Court has granted six months time to the decree-holder to seek execution of the decree. Therefore, the balance sale consideration could have been deposited within six months of the date of decree. However, the impugned order was passed by the learned Executing Court on 3.2.1993, i.e. within a period of six months. Therefore, there was no occasion with the petitioner to deposit the balance sale consideration. 7 C.R.No. 705 of 1993 The argument that with the passage of time, it will be inequitable to grant decree for specific performance, is again not tenable. Mere increase in the prices with the passage of time is not a ground to decline the specific performance of the decree. It was so held in Piara Singh (Dead) through his LRs Vs. Ravinder Pal Singh Sidhu and others 2006 (3) PLR 431 and Mehar Singh Vs. Bhajan Singh 2009 (4) PLR 413. This Court in an another recent judgment reported as Smt. Mohini Kapoor and others Vs. Deepak Uppal and others 2006 (1) PLR 584 after examining the number of Hon’ble Supreme Court judgments concluded that breach of contract to transfer immoveable property cannot be adequately relieved by compensation in money. It was held that presumption is available under Explanation (1) of Section 10 of the Act that the Court must presume that the breach of a contract to transfer immoveable property must be specifically enforced and the alternative relief of securing compensation in money would not be adequate. Still further, the plaintiff was declined specific performance only on account of the order passed by the learned Executing Court, which order is patently illegal. An order passed by the Court shall not prejudice the rights of the parties. Lastly, it was argued by the learned counsel for the respondent that the amount of Rs.64,000/- was deposited in terms of the order passed by the Courts below and therefore, the plaintiff is precluded from seeking specific performance of the decree at this stage. Learned counsel for the petitioner has stated that the amount of Rs.64,000/- has not been withdrawn by the decree-holder. In view of the said fact, the amount of Rs.64,000/- shall be payable to the respondent. The respondent shall be at liberty to seek the withdrawn of the said amount in accordance with law. 8 C.R.No. 705 of 1993 In view of the above, the order passed by the learned trial Court is set aside. The petitioner is granted one month time to deposit the balance sale consideration. On such deposit, the sale deed in respect of 1/2 share of the defendant be executed in favour of the plaintiff in accordance with law. With the said observations, the present petition is disposed of. 07.07.2010 (HEMANT GUPTA) Vimal JUDGE 9