IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15941 of 2011 Md.Asharaf & Ors Versus Md.Panchu & Ors ---------------------------------- O R D E R 06. 04.11.2011. 1. Heard the learned senior counsel, Mr. S.S. Dwivedi on behalf of the petitioner and the learned counsel, Mr. S.M. Sabir Alam, appearing on behalf of the respondent. 2. This application under Article 227 of the Constitution of India has been filed by the plaintiff decree holders- petitioners against the order dated 12.12.2007 passed by Sri Daya Shankar Tiwary, Addl. District Judge-cum- First Track Court No.5, Begusarai in Misc. Appeal No.2 of 2006 confirming the order dated 05.01.2006 passed by Sri A.K. Sinha, Ist Munsif, Begusarai in Title Suit No.12 of 1984 whereby the Court below allowed the applications of the respondents holding that the contract between the parties had already rescinded and the decree passed in Title Suit No.12 of 1984 dated 15.04.1985 has become infructuous. 3. The predecessor in interest of the petitioner filed Title Suit No.12 of 1984 for specific performance of contract against the respondents seeking for specific performance of the agreement dated 01.05.1982. The said suit was decreed and in the Judgment, it was directed that the defendant should execute kewala on getting the balance amount of consideration from the plaintiff with respect to the suit land within 60 days - 2 - from the date of order failing which the plaintiff shall get the same through agency of the Court. The said decree was passed ex-parte. The plaintiff filed an application on 12.11.1990 for the first time under Order 21 Rule 34 C.P.C. requesting the Court to issue notice to the respondent and to accept the draft sale deed and to direct them to execute the sale deed. Notices were issued. The Curt below accepted the deposit of balance consideration amount. The respondent appeared on 09.04.2002 and filed an application under Section 28 of the Specific Relief Act which was allowed by the trial Court. On appeal, the appeal was dismissed. 4. The learned senior counsel for the petitioner submitted that the Judgment and decree was passed ex-parte and, therefore, the defendant filed the application under Order 9 Rule 13 C.P.C. which was rejected. The Title Suit No.55 of 2003 was also filed by the defendant which was also dismissed up to the High Court. When the plaintiff was contesting the said matters diligently, it cannot be said that the plaintiff was not ready and willing to deposit the meager amount of Rs.400/-. After filing the application by the plaintiff, the Court allowed the petitioner to deposit the said amount of Rs.400/- and, therefore, it can be presumed that the Court below extended the period under Section 28 of the Specific Relief Act till the deposit made by the plaintiff. In such circumstances, the Court could not have allowed the application under Section 28 of the Specific Relief Act. - 3 - 5. The learned counsel relied upon Full Bench decision of this Court reported in A.I.R. 1962 Patna 72 (Baidnath Prasad Sah Vs. Ramphal Sahni) and submitted that the question raised by the defendant-respondent by filing application under Section 28 C.P.C. was available to them earlier in the suit as well as in the proceeding under Order 9 Rule 13 and also in civil revision but they did not raise, therefore, it will be deemed that their prayer was refused under the provision of constructive res-judicata and now, they should not be allowed to raise the said objection by filing application under Section 28 of the Specific Relief Act. 6. On the contrary, the learned counsel for the respondent submitted that there is no illegality in the impugned order. The time cannot be extended automatically and moreover here the petitioner never prayed for extension of time. The proceeding u/s 28 of Specific Relief Act is independent proceeding and therefore, the question of constructive resjudicata does not arise. The learned counsel relied upon a decision reported in 2007 (14) S.C.C.26 Chanda (dead) through Lrs. Vs. Rattni. 7. From perusal of the Full Bench decision relied upon by the petitioner in A.I.R.1962 Patna 72, it appears that it has been held that if a party takes an objection at a certain stage of proceeding and does not take another objection which it might and ought to have taken earlier stage, it must be deemed that the Court has adjudicated upon other objection - 4 - also and has held against it. In the present case at our hand, the earlier proceeding filed by the respondent was either under Order 9 Rule 13 C.P.C. praying for setting aside ex-parte decree or the suit. The suit was also filed for setting aside the ex-parte decree which were dismissed. So far Section 28 of the Specific Relief Act is concerned, it is entirely different and independent proceeding. This ground could not have been raised and those proceeding instituted by the defendant, i.e. proceeding under Order 9 Rule 13 or the suit filed by the defendant could have been allowed on this ground. 8. In A.I.R. 1999 Supreme Court 918, the Apex Court at paragraph 17 has held that the Court cannot as a matter of course allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the trial Court and 3 years of its confirmation by the appellate Court. Here, in the present case at our hand admittedly, the decree was passed in 1985 and 60 days time was granted to get the sale deed executed. The defendant was directed to receive the balance consideration amount and to execute the sale deed within 60 days. When the defendant did not accept, the plaintiff should have deposited the same within the said period granted by the Court in the decree but instead of doing so, for the first time, he filed the application after 5 years in the year 1990. There is no mention that he ever applied for extension of time granted by the decree. Therefore, automatically, the period granted in - 5 - the decree cannot be extended. 9. According to the learned counsel, there is no specific direction given to the plaintiff to deposit the balance consideration within stipulated period and, therefore, the trial Court was not justified for rescinding the contract on account of non-deposit of balance consideration by the plaintiff. It is evident from the Judgment decreeing the plaintiff’s suit that the defendant had been directed to execute the sale deed within 60 days from the date of the decree on payment of balance consideration by the plaintiff. The said direction, therefore, is a condition precedent for execution of the sale deed. It was implicit in the direction that the plaintiff was required to deposit the balance consideration within a period of 60 days first and it was only then the defendant-respondents were required to execute the sale deed. Admittedly, the plaintiff did not deposit the balance consideration, may it be a meager amount till the expiry of 5 years and, therefore, in my opinion, the learned Court below has rightly held that the contract has rescinded and now the decree cannot be enforced. 10. In view of the above facts and circumstances of the case in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, the impugned order cannot be interfered with. I, therefore, find no merit in this application and accordingly, it is dismissed. Patna High Court, Patna The 4thday of November, 2011 Sanjeev/A.F.R. (Mungeshwar Sahoo,J.) - 6 -