IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.3752 of 2010 Date of Decision: 28.5.2010 Sarwan Singh and others. ....... Petitioners. Versus Balbir Singh and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Vikram Singh, Advocate for the petitioners. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The petitioners are aggrieved by order dated 2.4.2010 passed by Civil Judge (Senior Division), Jalandhar (hereinafter described as `the Executing Court'). In the petition filed by respondent no.1 (decree holder) for execution of decree dated 26.9.1991 passed in civil suit no.1063 of 1990 which was initiated for specific performance of an agreement to sell dated 25.5.1984, they along with respondent nos. 2 to 5 (judgment debtors) had moved an application under Section 28 of the Special Relief Act,1963 (for short, `the Act') for rescission of the ibid contract for sale on the ground that the decree holder did not deposit the requisite amount within the C.R.No.3752 of 2010 -2- .... stipulated time. The Executing Court rejected the prayer made in the said application vide the impugned order leading to the filing of the instant revision petition. Learned counsel for the petitioners has contended that the impugned order suffers from grave infirmity as the decree holder clearly failed to deposit the purchase amount within the time stipulated in the decree and in such an eventuality, the provisions of Section 28 of the Act should have been applied by the Executing Court to rescind the contract of sale. I have thoughtfully considered the aforementioned contention and have gone through the file. If the facts as emanating from the impugned order are to be seen, then it is evident that an agreement to sell was executed between the the decree holder and judgment debtor no.1-Daya Singh on 25.5.1984 which, however, did not fructify into sale compelling the former to file a suit for specific performance. That suit was decreed on 26.9.1991 on the basis of the compromise having been arrived at between the parties and the judgment debtor no.1 was directed to execute the sale deed in terms of the aforesaid agreement within a period of one month, failing which the decree holder was held entitled to get the sale deed executed through the process of the Court. It is, thus, clear that the onus to get the sale deed executed within one month was laid upon the judgment debtor no.1 and in the eventuality of non-compliance of this condition by him, the decree holder was given liberty to get the sale deed executed through the process of the C.R.No.3752 of 2010 -3- .... Court. On the other hand, no condition was imposed upon the decree holder. During this period of one month, the decree holder is shown to have approached judgment debtor no.1-Daya Singh along with balance sale consideration for execution of the sale deed, but the latter did not do so. The decree holder is then said to have deposited Rs.28450/- with Jalandhar Primary Agricultural Development Bank on 7.10.1991 and another amount of Rs.21980/- with Canara Bank on 21.10.1991 in order to obtain clearance certificate as the suit property was under attachment with them on account of loan raised by judgment debtor no.1. He also made an application on 26.10.1991 to the concerned Court for permission to deposit the balance sale consideration of Rs.10867.50 for onward payment to the judgment debtor no.1 and also filed an execution petition for getting the sale deed executed through the process of the Court as the judgment debtor no.1 was evading to do so. The application for depositing the balance sale consideration was allowed by the concerned Court on 18.12.1991. In the meantime, the decree holder came to know that judgment debtor no.1-Daya Singh had transferred the land in question by way of a collusive decree in the year 1988 in favour of his sons and, therefore, he withdrew the execution petition on 21.12.1992 in order to enable him to challenge the said decree. The decree holder,thereafter, impugned the alienation of the land in question by filing a suit for declaration which was decreed in his favour. The litigation went up to the Hon'ble Supreme Court and the alienation by judgment debtor no.1 in favour of his sons was declared as null & void affirming the right of the decree holder. C.R.No.3752 of 2010 -4- .... The aforementioned fact of alienation was not disputed by the judgment debtor no.1. However, the same was cleverly concealed by him at the time of passing of decree dated 26.9.1991 forcing the decree holder to go into a deep, second round of litigation. When the decree holder filed the second execution petition for compliance of decree dated 26.9.1991, the instant application was moved by the judgment debtors under Section 28 of the Act pleading therein that once the terms of the decree had not been satisfied, the agreement to sell dated 25.5.1984 was liable to be rescinded. If the facts as noticed above are to be seen, then it is the judgment debtor no.1, who has defrauded the decree holder and successfully held right of the latter in abeyance. He concealed the factum of transfer of the land in question by way of collusive decree in the year 1988, whereas the decree in favour of the decree holder came into existence in the year 1991. The decree holder even paid substantial amounts to the banking institutions in order to get a clearance certificate from them as the land in question was under attachment. Even at that point of time, judgment debtor no.1 did not disclose the factum of alienation of property in favour of his sons. The decree holder then filed an execution petition and also made an application for permission to deposit the balance sale consideration as judgment debtor no.1 did not get the sale deed executed within the stipulated time. It is thereafter that the factum of alienation of the suit land came to the knowledge of the decree holder forcing him to file another suit challenging the collusive decree suffered by judgment debtor no.1 in favour C.R.No.3752 of 2010 -5- .... of his sons. Therefore, the contention of the judgment debtors that the terms of the decree have been violated by not paying the whole sale consideration within the stipulated time and consequently, they were entitled to be liberated from the terms of agreement to sell dated 25.5.1984 is not, at all, tenable. As mentioned above, the decree holder had filed an application for permission to deposit the balance amount within the time stipulated in the decree. That application was allowed by the Executing Court on 18.12.1991 and thereafter, the decree holder had to withdraw the execution petition in order to file a suit for declaration. However, the payment of the balance sale consideration was made in the year 1996. Thus, the time for payment of balance sale consideration would be deemed to have been extended and the plea of the judgment debtors that the terms of the decree had not been complied with is erroneous on this ground as well. Looking at it from any angle, the impugned order is completely justified as the judgment debtors had fraudulently tried to stall the execution of decree dated 26.9.199 and had forced the decree holder into litigation time and again. The provisions of Section 28 of the Act which are extracted below, are explicitly clear, but they do not come to the rescue of the judgment debtors for the reasons mentioned hereinabove:- “28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.- (1) where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the C.R.No.3752 of 2010 -6- .... purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the court - (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or C.R.No.3752 of 2010 -7- .... lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:- (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition or separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this section shall be in the discretion of the court.” In the instant case, the decree holder has been vigilant enough and has been prompt in the execution of the decree and had demonstrated his intent by depositing the substantial amounts with the banks in order to get released the property in dispute from the attachment so as to enable him to carry out the execution in totality,but it is the conduct of judgment debtor no.1 which resulted in the execution of the decree being kept in abeyance for such a long time. In my opinion, such kind of frivolous litigation, which is dishonest in intent, not only tends to defeat the right of a decree holder, but also consumes valuable time of the Court. No indulgence is to be granted to a litigant whose conduct per se on the face of it is tainted and malicious to frustrate law and rights of a just litigant. C.R.No.3752 of 2010 -8- .... The instant petition, in my view, is totally frivolous and malicious. It is, therefore, dismissed with costs of Rs.50,000/- which will be over and above the costs granted by the Executing Court vide the impugned order. At this stage, learned counsel for the petitioners, on instructions from his clients, prayed for withdrawal of this petition. The prayer is declined. May 28,2010 ( Mahesh Grover ) “SCM” Judge