IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD TUESDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.356 of 2002 Between: Kondanna and others …Appellants A n d B.Sambasiva Reddy ..Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.356 of 2002 JUDGMENT: This second appeal is directed against the judgment and decree dated 14.11.2000 in A.S.No.48 of 1999, on the file of the Additional Senior Civil Judge, Anantapur, wherein the said appeal filed by the appellant herein, the plaintiff, was dismissed, confirming the judgment and decree dated 15-02-1993 in O.S.No.31 of 1989, on the file of the Principal District Munsif, Anantapur, whereunder the said suit filed by the appellant was dismissed. 2. Heard the leaned counsel for the appellant/plaintiff and the learned counsel for the respondent/defendant. Perused the record. 3. The appellant herein filed the suit for setting aside the sale deed dated 31.03.1986 which was obtained in execution proceedings in E.P.No.121 of 1986 in O.S.No.364 of 1983 on the ground that the decree was inexecutable. According to the appellant/plaintiff, himself and defendant entered into an agreement of sale dated 11.09.1980 for a consideration of Rs.9,800/- and the defendant obtained a decree in O.S.No.364 of 1983 for specific performance and filed E.P.No.121 of 1986 and the Court granted one month’s time for execution of the decree and the said period expired by 30.04.1986 and as the defendant failed to comply with the conditions of the decree, the agreement became unenforceable but, however, the defendant obtained a sale deed through process of Court. 3. The defendant filed a written statement contending that while decreeing the suit it was nowhere stipulated that the defendant should pay balance of sale consideration within one month from the date of decree and as the plaintiff failed to execute the sale deed, the defendant filed E.P.No.121 of 1986 and obtained sale deed through process of the Court. 4. The trial Court framed the following issues for trial: i) Whether the sale deed executed and registered in pursuance of E.P.No.121 of 1986 in O.S.No.364 of 1983 is not liable to be set aside for the time being essence? ii) To what relief? 5. The plaintiff was examined as P.W.1 and Exs.A-1 to A-4 were marked on his side and defendant was examined as D.W.1 and Exs.B-1 to B-6 were marked on his side. 6. On a consideration of the evidence available on record, the trial Court held that the sale deed is not liable to be set aside and accordingly dismissed the suit. Aggrieved by the same, the defendant preferred an appeal in A.S.No.48 of 1999. The learned Additional Senior Civil Judge, by the impugned judgment, dismissed the appeal. 7. It is not disputed that the defendant herein filed a suit O.S.No.364 of 1983 against the plaintiff herein for specific performance of agreement of sale dated 11.09.1980. The said suit was decreed on 31.03.1986 directing the plaintiff herein to execute a registered sale deed within one month from 31.03.1986 by receiving Rs.1,800/- towards the balance of sale consideration and also directing him to deliver possession of the schedule property. It was further directed in the said decree that in case of failure of the plaintiff herein, the same may be done through Court if the plaintiff deposits the balance of consideration of Rs.1,800/- into Court. As the plaintiff herein did not comply with the direction, the defendant filed E.P.No.121 of 1986 and obtained a registered sale deed through process of Court. Admittedly, no appeal was preferred against the judgment and decree in O.S.No.364 of 1983 and the same became final. 8. It is not the case of the appellant/plaintiff that the judgment and decree Ex.A-1 in O.S.No.364 of 1983 are vitiated by any fraud or other circumstances. As seen from the copy of the judgment and decree, the defendant contested the same by engaging a counsel by name one B.Iqbal who appeared for the plaintiff herein and in E.P.No.121 of 1986 (Ex.B-3) also. P.W.1 also admitted the same. While the appeal in A.S.No.48 of 1999 was pending, the plaintiff herein filed I.A.No.1227 of 1993 under Section 23 of the Specific Relief Act seeking a declaration that there was a rescission of the contract. As the defendant herein did not comply with the condition of depositing the balance sale consideration of Rs.1,800/- within time, the said application was allowed by the lower Court and the respondent/defendant herein filed C.R.P.No.582 of 1995 and the said revision was allowed, setting aside the order of the trial Court in I.A.No.1227 of 1993 and holding that the petition was barred by limitation and is not maintainable. In the said judgment also, which was reported in B.SAMBASIVA REDDY V. KAYAGURLA KONDANNA[1], it was noted that the plaintiff herein contested the EP and it is not his case that he does not know the execution of the sale deed. The said order in the CRP has become final. It is, therefore, not open for the plaintiff herein to again raise the same plea that there was default on the part of the defendant herein in complying with the directions contained in O.S.No.364 of 1983 and, therefore, the decree is inexecutable. In fact, a perusal of the decree dated 31.03.1986 in O.S.No.364 of 1983 would show that the period of one month is stipulated for the plaintiff herein to execute the registered sale deed after receiving balance of sale consideration of Rs.1,800/-. In the event of the failure of the plaintiff to execute the sale deed, the Court by a further direction enabled the defendant herein to deposit the balance sale consideration of Rs.1,800/- in Court and obtain the sale deed through the process of the Court. Significantly, no period is prescribed in the said clause-iii of the decree within which the plaintiff has to pay the balance sale consideration similar to clause-i whereunder a period of one month is prescribed for the defendant to execute the sale deed. When the decree does not impose any condition or obligation on the defendant herein prescribing any particular period within which the said condition/obligation is to be fulfilled, the question of failure on the part of the defendant herein to comply with such condition simply does not arise. The plaintiff herein having contested the EP through counsel and not having taken any such plea therein is not entitled to seek cancellation of the sale deed now on the ground that the defendant herein failed to comply with the directions contained in the decree. The impugned judgments of the Courts below do not, therefore, call for any interference by this Court. No question of law, much less substantial question of law, arises for consideration in this second appeal. There are no merits in the second appeal. 9. In the result, the second appeal is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 17th August, 2011 Lrkm. [1] 1996(3) ALT 818