IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 CRP.No. 412 of 2010() --------------------- AGAINST THE ORDER DATED 15/10/2009 IN IA.194/2008 IN OS.100/2001 of SUB COURT, PATHANAMTHITTA .................... REVN. PETITIONER: --------------------- JOY, S/O.KUNJACHAN, KODUMANNETHU HOUSE, KAAIPATTOOR MURI,VALLICKODU VILLAGE. BY ADV. SRI.PHILIP M.VARGHESE RESPONDENT: --------------- K.A.VARGHESE, S/O.PHILIPOSE ABRAHAM, KOCHUVEETTIL, MANJINIKKARA MURI,OMALLOOR VILLAGE-689652. ADV. SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE FOR R1 SMT.K.DEEPA (PAYYANUR) FOR R1 SRI.S.MANU FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/11/2010 ALONG WITH OP(C)No.457 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 --------------------------------------- Dated this 09th day of November, 2010 ORDER This revision under Section 115 of the Code of Civil Procedure (for short, “the Code”) and petition under Article 227 of the Constitution arise from the same subject matter, enforcement of a decree for execution of a sale deed pursuant to an agreement for sale executed by petitioner in favour of respondent. Respondent alleged that in spite of his being ready and willing to perform his part of the contract petitioner failed to perform his part and filed O.S.No.100 of 2001 in the court of learned Sub Judge, Pathanamthitta for a decree for specific performance. That suit resulted in a decree on December 14, 2005 as per which petitioner was directed to execute the sale deed after receiving `.4,47,500/- within a period of three months from the date of decree and in case petitioner failed to do so permitting respondent to realise balance sale consideration and get the sale deed executed. Period of three months expired on 13-02-2006 but, petitioner did not take any steps to comply with O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 : 2 : the direction in the decree. On July 21, 2006 respondent filed E.P.No.104 of 2006 to direct petitioner to execute the sale deed in favour of a nominee of his. The balance sale consideration as per the decree was deposited in the trial court on March 6, 2007. Execution petition was objected by petitioner on various grounds. Petitioner filed I.A.No.194 of 2008 on the trial side of the same court to rescind the contract under Sec.28 of the Specific Relief Act (for short, “the Act”). That application was opposed by the respondent. Learned Sub Judge dismissed I.A.No.194 of 2008 which is under challenge in C.R.P.No.412 of 2010. In the light of objection raised by petitioner to the execution petition on the ground that decree directs sale of property to the respondent and hence sale deed could not be executed in favour of his nominee, respondent filed application in the execution court for amendment of the execution petition to the extent that sale deed is to be executed in favour of respondent. That application was allowed by the learned Sub Judge which is under challenge at the instance of petitioner/judgment debtor in O.P(C).No.457 of 2010. Following contentions are raised before me. (i) Decree is one for mandatory injunction. Executing court was not correct in allowing amendment of the execution petition O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 : 3 : after three years of the decree (December 14, 2005). (ii) Executing court was not justified in allowing the respondent to proceed with execution petition filed on 21-07-2006 without respondent seeking extension of time for deposit of the amount on the trial side. (iii) Learned Sub Judge was not correct in dismissing I.A.No.194 of 2008 and at any rate without going into the question whether it was just and equitable to permit respondent get the sale deed executed. 2. It is contended by learned counsel for petitioner/judgment debtor that in so far as decree is one for mandatory injunction, period of limitation for its execution is three years from the date of decree as provided under Article 135 of the Limitation Act and hence the application for amendment filed after three years of the decree to execute the sale deed in favour of respondent could not have been entertained. I stated that the purport of amendment was to correct the prayer in the execution petition to the effect that sale deed be executed in the name of respondent instead of his nominee (as originally prayed for). 3. Contention that decree is for mandatory injunction cannot be accepted. True, the decree directs petitioner by an O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 : 4 : order of mandatory injunction to execute the sale deed. The copy of decree states that the suit was for specific performance. It leaves me in no doubt that in whatever manner relief has been worded by the learned Sub Judge, it continued to be a suit for specific performance. Court fee is also paid for specific performance. Hence the contention that decree is for mandatory injunction cannot be accepted. Even otherwise assuming that the suit is for mandatory injunction still the argument advanced by learned counsel cannot be accepted since the execution petition was filed on 21-07-2006, certainly from three years of the decree in compliance of Article 135 of the Limitation Act. What is done by respondent after three years of the date of decree is only to seek amendment of the execution petition to the effect that the sale deed be executed not in the name of his nominee as originally prayed in the execution petition but in the name of respondent himself. That cannot be treated as an execution petition attracting period of limitation under Article 135 of the Limitation Act. 4. Next contention is that in so far as respondent has not deposited sale consideration within three months from the date of decree (December 14, 2005) it required extension of time on the part of respondent for deposit of the amount. It is pointed out by O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 : 5 : learned counsel that executing court could not have extended time even if it was requested for. It is also contended that learned Sub Judge was not correct in dismissing I.A.No.194 of 2008 without considering whether it was just and equitable to permit the respondent to get sale deed executed. Reliance is placed on the decisions in Narayanan Nair Raman Nair Vs. Govindan Nair Raman Nair (AIR 1952 Travancore-Cochin 440), Ramankutty Guptan Vs. Avara (1992(2) KLT 608) and Anandavally Vs. Nadesan (1992(2) KLT 833). Per contra it is contended by learned Senior Advocate appearing for respondent that the decree did not specify that respondent had to deposit the amount within any particular time and hence it could not be said that there was non compliance of the decree by the respondent so that respondent was required to move under Sec.28 of the Act for extension of time. At any rate in the absence of any evidence of positive default on the part of respondent to comply with the decree, executing court was justified in allowing respondent to proceed with execution of the decree and the trial court in dismissing I.A.No.194 of 2008. 5. No doubt, as held by this court in Anandavally Vs. Nadesan (supra) in a suit for specific performance plaintiff has to show that he was always ready and willing to perform his part O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 : 6 : of the contract and that must extent up to the time of execution of the sale deed. If the decree directs decree holder to perform his duty within a time stipulated certainly it is required to be so done and if not, he may have to seek extension of time under Sec.28 of the Act as held in Narayanan Nair Raman Nair Vs. Govindan Nair Raman Nair (supra). The power for extension of time under Sec.28 of the Code is not vested with the executing court but with the trial court. The decree does not cast any liability on respondent to deposit balance sale consideration within any particular time though Order XX Rule 12A of the code of Civil Procedure required the court to specify time for deposit of the amount. Unfortunately the decree does not say so. It cannot therefore be said that there was any failure on the part of respondent to deposit the amount within the stipulated time and the court was bound to rescind the contract under Sec.28 of the Act though, it does not mean that respondent could have slept over the matter for any length of time and asked for extension of time for deposit of the amount. Two decisions supports the argument of learned Senior Advocate for respondent - Iiyas son of Faizi & Ors. Vs. IIIrd Addl. Dist. Judge, Meerut & Anr. (2006(3) ALJ 312)and Venkatakrishna Reddy Vs. M. Anjappa (AIR 2009 Andhra Pradesh 179). The decree does O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 : 7 : not direct respondent to deposit the amount within any specified time and hence it could not be said that there was any positive refusal on the part of respondent to comply with the decree which enabled petitioner to get rescission of the contract. 6. As per the decree, time provided to the petitioner to receive the balance sale consideration and execute the sale deed expired on 13-03-2006. There is no case or evidence that in the meantime petitioner had done anything on his part. Instead, he remained idle. Respondent on his part, filed E.P.No.104 of 2006 on 21-07-2006 ie, after four months of expiry of the time given to the petitioner as per the decree. Petitioner chose to file I.A.No.194 of 2008 only in the year, 2008 after respondent filed execution petition on 21-07-2006 and deposited balance sale consideration on 06-03-2007. Certainly it was to get rid of the execution petition already launched by respondent that petitioner chose to file I.A.No.194 of 2008 after the execution petition was filed and deposit was made. 7. It is contended by learned counsel for petitioner that learned Sub Judge while dismissing I.A.No.194 of 2008 has not gone into the question whether it was just and equitable to permit respondent to proceed with execution of the decree. Learned counsel requested that the matter may be remitted to O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 : 8 : the trial court for fresh consideration. 8. A remand cannot be ordered for the mere asking. Binding authorities on the point say that a remand must be avoided as far as possible if on the materials on record the issue can be determined. The decree was executable at the instance of petitioner also. If petitioner was ready and willing to perform his part of the contract he could have sought execution of the decree rather than waiting for two years after filing of the execution petition to file an application for cancellation of contract. This court indicated in Joseph George Vs. Chacko Thomas (1992 (1) KLT 6, paragraph 10), that in the absence of positive refusal to complete the contract, rescission of contract is not permissible. In the absence of evidence of positive refusal or wilful negligence of respondent in the matter executing court was correct in permitting respondent to enjoy the fruits of the decree. I do not find reason to interfere with the impugned order. 9. But, fact remained that respondent deposited balance sale consideration of `.4,47,500/- in the executing court only on 06-03-2007. That means, from the expiry of the time provided to the petitioner to get sale deed executed (13-03-2006) till 06- 03-2007 balance sale consideration was in the hands of respondent and he was enjoying its advantage. Petitioner lost O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010 : 9 : interest on the said amount during the said period. Having regard to the facts and circumstances of the case I consider it proper to direct respondent to pay interest @ 7.5% per annum from 13-03-2006 till 06-03-2007 (date of deposit in the executing court) on the balance sale consideration in the light of decision of this court in Thomas E.P. Vs. K.C. Sivadasan and Ors. (2009 (3) KLJ 781). Resultantly these petitions are dismissed but, I direct the respondent to deposit in the executing court for payment to the petitioner, interest @7.5% per annum on the balance sale consideration of `.4,47,500/- from 13-03-2006 till 06-03-2007 within two months from this day failing which it will be open to the petitioner to execute this order in the executing court as provided under law and realise the said amount from the respondent and his assets with cost of execution. (THOMAS P JOSEPH, JUDGE) Sbna/-