CR No. 6334 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 6334 of 2011 (O&M) Date of Decision: 18.10.2011 Manjit Singh & Anr. ...Petitioners Vs. Avtar Singh. ...Respondent BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Baljinder Singh Sra, Advocate, for the petitioners. --- A.N.Jindal, J. This petition assails the order dated 14.09.2011 passed by learned Additional Civil Judge (Sr. Division), SAS Nagar, Mohali, dismissing the application of the petitioners/Judgment Debtors (hereinafter referred as Judgment Debtors), for dismissing the execution petition. Decree dated 14.2.2008, for possession by way of specific performance was passed in favour of the respondent/decree holder (herein referred as decree holder) with the condition that the decree holder would deposit the balance sale consideration within 2 CR No. 6334 of 2011 2 months from the date of the decree failing which the suit shall be dismissed. Decree was passed on 14.2.2008 . Execution application was filed on 19.4.2008 and the court got deposited the amount on 13.5.2008 i.e. within 3 months of the passing of the decree. The petitioner has agitated that since it was a conditional decree, therefore, the execution cannot continue. Heard, plaintiff had filed the execution application on 19.04.2008 but the court passed an order while extending the time to deposit the amount on 13.05.2008 and pursuant to the said order, the amount was deposited on 3.5.2008. Learned counsel for the petitioner has urged that in the light of Section 28 (1) of the Specific Relief Act, in a case of conditional decree for specific performance, the court could not enlarge time for depositing the purchase money, ordered to be deposited. But this point was elaborately discussed by Kerala High Court in the judgment delivered in the case of Kumaresan Vs. Seshadri 2002 (4) RCR (Civil) 245, wherein it was observed as under:- “23. In the decision in Sardar Mohar Singh Vs. Mangilal, 1997 (2) RCR (Civil) 296 (SC) : (1997) 9 SCC 217, the Supreme Court has observed as follows: “4. From the language of sub-s.(1) of S.28, it could be seen that the court does not lose its jurisdiction after the grant of the decree for specific CR No. 6334 of 2011 3 performance nor it becomes functus officio. The very fact that S.28 itself gives power to grant power of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial court retains its power and jurisdiction to deal with the decree of specific performance. It would also be clear that the court has power to enlarge the time in favour of the judgment-debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment-debtor and rejected. In other words, the court has discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance.” The Apex Court in order to settle the controversy and to overcome the conflicting view given by the different courts dealt with section 28 of the Act in the case of Md.Alimuddin Vs. Waizuddin & Anr. AIR 1997 SC 1995, while dismissing the application under section 28 (1) of the Specific Relief Act to rescind the contract observed as under:- “2. It is true that, as pointed out by Shri Sinha, the learned counsel for the petitioner that the trial Court while CR No. 6334 of 2011 4 extending the time mentioned that it is a risk of the plaintiff but having exercised the discretion and allowed the respondents to deposit the balance consideration of Rs.500/- it amounts to that the Court has extended the time. The respondents have complied with the original directions contained in the decree of July 7, 1982, the Courts below, therefore, have rightly exercised the discretion in extending the time for compliance. We do not find any illegality in the exercise of the power. The SLP is accordingly dismissed.” Similarly in the case of Gobind Ram Vs. Gian Chand, 2000 (4) RCR (Civil) 674 (SC): (2000) 7 SCC 548, the Supreme court has observed as follows: “7. It is settled position of law that grant of a decree for specific performance of contract is not automatic and is one of the descretions of the court and the court has to consider whether it will be fair, just and equitable. The Court is guided by principle of justice, equity and good conscience. As stated in P.V.Joseph's Son Mathew, AIR 1987 SC 2328, the Court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered.” CR No. 6334 of 2011 5 However, the Judgment debtor has relied upon the judgments delivered in the case of Smt.Parmeshri Vs. Naurata AIR 1984 Punjab & Haryana 342. Having gone through this judgment, the same is not applicable to the facts of the present case. Said judgment was for payment of an amount of Rs.15,000/- in instalments and on failure to pay any instalment suit for possession was to be decreed. Similarly, the decisions in the cases Smt.Savitribai A. Salvi Vs. Suman Navgire, (Bombay) 2 009 (4) Civ.C.C. 292, Resham Singh & Ors. Vs. Manmohan Singh Kent and Ors. 1 985 (1) PLR 278, Pukhraj Vs. Kunji & Ors. 1998 (2) Civ.CC 360 and Dinesh minor son of Rama Nand and Anr. Vs. Lal Singh & Ors. 2007 (2) RCR (Civil) 864 as referred by the petitioner being on different facts are not applicable to the facts of the present case. It appears that the judgment delivered by the apex court in the case of Md.Alimuddin Vs. Waizuddin & Anr. (supra) was not brought to the notice of the courts taking the adverse view. Even thereafter the Apex Court approved the earlier view (view taken in Md.Alimuddin's case supra) in Gobind Ram's case (supra). In the instant case, the trial court while exercising its discretion has extended time and allowed the decree holder to deposit the amount while condoning the delay of 4 days in depositing the same. Now this court is hesitant to interfere in the discretion exercised by the court and extinguish the effect of the decree passed CR No. 6334 of 2011 6 by the court after a hot contest. Even otherwise, when once the court had held that the plaintiff was always ready and willing to comply with his part of the contract, then the said findings do not stand vanished due to certain bona fide unintentional delay in depositing the amount. Even otherwise, no evidence has been led in order to prove that the plaintiff/respondent had no money on the date fixed or that he was not ready and willing to deposit the said amount. No grounds to interfere. Dismissed. (A.N.Jindal) 18.10.2011 Judge rp