HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. Nos.84 of 2010, 24 of 2010 & 336 of 2010 DATE: -03-2010 CIVIL REVISION PETITION No.84 OF 2010 BETWEEN A.V.S.S.Subrahmanyam & 2 others. …Petitioners AND Angani Sreeramamurthy …Respondent CIVIL REVISION PETITION No.24 OF 2010 BETWEEN Akella Venkata Rama Subrahmanya Sarma (died) & others. …Petitioners AND Angani Sreeramamurthy …Respondent CIVIL REVISION PETITION No.24 OF 2010 BETWEEN Akella Venkata Rama Subrahmanya Sarma (died) & others. …Petitioners AND Angani Sreeramamurthy …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. Nos.84 of 2010, 24 of 2010 & 336 of 2010 COMMON ORDER: These three revisions are interconnected and arising out of the same suit and hence, they are heard together and being disposed of by this common order at the stage of admission. The parties herein will be arrayed as per their array in the suit. The respondent-plaintiff filed O.S.No.51 of 1983 for specific performance of an agreement of sale, dated 3.6.1982 against the first defendant and on contest, the said suit was decreed on 30.11.1990 as under: “1. That the defendant be and is hereby directed to execute and register a sale deed in pursuance of the suit agreement of plaintiff in possession of the plaint schedule property sale in respect of the plaint schedule property after receiving the balance of sale consideration of Rs.28,000/- from the plaintiff within a period of three months from this date. 2. That the defendant do pay to the plaintiff a sum of Rs.800/- towards the rent due for the 1st and 2nd crops. 3. That the defendant do also pay to the plaintiff a further sum of Rs.4,109-45 towards his costs of this suit bearing his own costs and, 4. That if the defendant fails to execute and register the sale deed and put the plaintiff in possession of the plaint schedule property as directed in clause No.1 above within the time granted, the plaintiff be and is at liberty to get the said sale deed executed and registered by this Court on behalf of the defendant and obtain delivery of possession of the pliant schedule property after depositing the balance sale consideration of Rs.28,000/- into this court and recover the expenses therefor from the defendants through court in execution of this decree.” Questioning the said decree, the petitioners-defendants filed A.S.No.143 of 1993 before this Court in which they filed C.M.P.No.1898 of 1991 to stay all further proceedings in the suit pending the appeal. This Court by order, dated 14.2.1991 stayed the execution of sale deed on condition of first defendant depositing costs decreed against him in the lower Court to the credit of the suit. The said order has been made absolute on 21.7.1992 on condition of first defendant depositing, each year, pending the appeal, a sum of Rs.1250/- to the credit of the suit, and that for the year 1992-93 the amount would be deposited on or before the end of January, 1993, likewise, for the year 1993-93, he should deposit a sum of Rs.1250/- before the end of January, 1994, and that he should continue to deposit every year pending the appeal, which would be kept in deposit. The appeal was dismissed on 16.7.2008 confirming the decree and judgment of the trial Court granting specific performance. On dismissal of the appeal, the respondent-plaintiff filed I.A.No.728 of 2008 on 19.8.2008 requesting the Court to issue challan for enabling him to deposit the balance of sale consideration of Rs.28,000/-. The said I.A. was allowed on 4.9.2008 directing for issuance of the challan. Questioning the same, C.R.P.No.336 of 2010 is filed. On deposit of balance sale consideration, plaintiff filed I.A.No.324 of 2009 under Section 28(3) of the Specific Relief Act with a request to grant permission to execute decree by executing a registered sale deed in his favour in pursuance of the terms of suit agreement of sale as per the draft sale deed. While the said I.A. is pending, defendants-petitioners herein filed I.A.No.539 of 2009 under Section 28(1) of the Specific Relief Act to rescind the agreement of sale, dated 3.6.1982 executed by first defendant in favour of the plaintiff as the latter failed to deposit the amount within the time stipulated into the Court. The learned Senior Civil Judge, Amalapuram by order, dated 16.9.2009 allowed I.A.No.324 of 2009 filed by the plaintiff directing the defendants-petitioners herein to execute a proper and registered sale deed in favour of the plaintiff according to draft sale deed filed into the Court, and by a separate order of the even date, dismissed I.A.No.539 of 2009 filed by the defendants. Questioning the said orders, C.R.P.Nos.24 and 84 of 2010 have been filed by the defendants. Learned counsel for the petitioners-defendants vehemently contended that this Court stayed the execution of the decree pending the appeal in A.S.No.143 of 1993, but not the entire decree as such namely, deposit of the balance of sale consideration within three months from the date of the order. Even if the period from the date of the interim order till the date of dismissal of the appeal is excluded, the balance sale consideration deposited by the plaintiff is beyond three months and hence, without there being any application for enlargement of time, I.A.No.728 of 2008 ought not to have been allowed that too without issuing any notice to the defendants. Therefore, it is contended that the orders passed by the lower Court in allowing I.A.No.324 of 2009 directing the first defendant to execute the registered sale deed is liable to be set aside and the I.A. filed by the defendants to rescind the suit agreement of sale has to be allowed. When admittedly, the balance sale consideration was deposited into the court nearly after 17 ½ years from the date of the decree i.e. 30.11.1990, in the absence of any enlargement of time for such belated deposit, allowing I.A.No.728 of 2008 for deposit of the balance sale consideration is erroneous and improper. It is contended that inasmuch as the grant of specific performance is an equitable relief and if the decree holder fails to pay the money within the period allowed by the decree, the judgment debtor also can to rescind the contract as the plaintiff is not always ready and willing to perform his part of the contract. To buttress the said submissions, reliance is placed on the following judgments: Pagadala Pedda Yadaiah v. K.Annapurnamma[1]; Cherukuri Venkata Rao v. Brahmojosyula Bala Gangadhara Sharma & Others[2]; Sardar Mohar Singh v. Mangilal[3]; Balasa Sarada v. Talluri Anasuryamma[4]; V.S.Palanichamy Chettiar Firm v. C.Alagappan and Another[5]; a n d Chanda (Dead) Through L.Rs. v. Rattni and Another[6] Per contra, sri R.Prasad, learned counsel appearing for the respondent-plaintiff contended that once the first defendant filed an appeal and obtained interim stay of execution of the sale deed, only on dismissal of the appeal, the plaintiff has to deposit the balance sale consideration within the time granted by the lower Court, and that the decree of the trial Court merges with the decree of the appellate Court and therefore, the deposit of balance sale consideration was within three months from the date of dismissal of the appeal, and hence, it is not necessary to file an application seeking enlargement of time for deposit of the balance sale consideration. Further under Section 15 of the Limitation Act, any time spent during the period which the proceedings are stayed, is liable to be excluded. He placed reliance on the judgment of this Court in Mareddi Venkata Rami Reddy v. Mareddi Adinarayana Reddy & Others[7] a n d Ramankutty Guptan v. Avara[8]. In view of the above rival submissions, the point that arises for consideration in these revisions is: ‘Whether the lower Court committed any illegality in permitting the decree holder-respondent herein to deposit the balance sale consideration while allowing I.A. directing the judgment debtor-first petitioner herein to execute a registered sale deed?’ Before adverting to the point in issue, I shall briefly refer to the decisions on which reliance is placed by the counsel for the parties. In Pagadala Pedda Yadaiah’s case (1 supra), the decree holders had not deposited the balance sale consideration within the period prescribed under the decree, but took more than 1 ½ years time and filed execution petition for due execution of the decree which was ordered by the executing Court, directing the decree holders-plaintiffs to deposit the balance sale consideration, against which, the defendants filed an application under Section 28 of the Specific Relief Act for rescission of agreement of sale. A learned single Judge of this Court after considering the various decisions cited for the proposition that the decree passed in the suit for specific performance is not a final decree and the suit must be deemed to be pending even after the decree, held that Court could not have itself and even without notice to the defendants, granted time to deposit the balance sale consideration and could not have, of its own accord, enlarged the time for payment of the balance sale consideration, as it did, and accordingly set aside the order of the trial Court. Justice Jeevan Reddy, as he then was, speaking for the Bench in Cherukuri Venkata Rao’ case (2 supra), held that filing of the execution petition by the plaintiff for directing the judgment debtors to execute a sale deed was really unnecessary, and that no execution petition as such is necessary for the said purpose after the coming into force of the Specific Relief Act, 1963, as sub- section (3) of Section 28 empowers the Court to direct not only the execution of sale deed in pursuance of a decree for specific performance, but also to direct delivery of possession, and to pass all other necessary and ancillary orders in the same suit. In the said case, the suit of the plaintiff was dismissed, which was reversed and decreed in appeal by the High Court, however, by inadvertently the time limit within which time the balance sale consideration was to be deposited was not prescribed. The said judgment was also confirmed by a Division Bench of this Court in L.P.A. on 23.9.1975. After confirming the judgment passed in A.S. by the Division Bench by dismissing the L.P.A. on 23.9.1975, the plaintiff deposited the balance of sale consideration on 16.4.1981 and filed an Execution Petition on 12.10.1981. One year after deposit of balance sale consideration by the plaintiff, the defendants filed I.A.No.314 of 1982 under Section 28(1) of the Specific Relief Act for rescinding the agreement on the ground that the plaintiff has failed to deposit the balance sale consideration for a period of seven years, and further that he has also trespassed into the land unlawfully. The trial Court dismissed the E.P. as barred by limitation while allowing the I.A. filed for rescinding the agreement. In the said circumstances, Division Bench of this Court held that the plaintiff waited for an unreasonably long time in depositing of the balance sale consideration and therefore, his conduct also militates against him, which disinclines the Court from granting the discretionary, or any equitable relief to him, and holding so, dismissed the revision. In Sardar Mohar Singh case (3 supra), the suit filed by the plaintiff for specific performance of a contract was decreed for refund of earnest money and also damages as agreed in the contract agreement within a period of three months and in default to execute the sale deed. The defendant filed applications to rescind the decree in execution and sought extension of time for compliance, which was granted by the executing Court by allowing both the applications with a direction to deposit the amount within three days from that date. In a revision being filed, the High Court of Madhya Pradesh while upholding the order, directed the defendant to deposit a further sum of Rs.16,000/- to compensate the plaintiff for loss of enjoyment of money. In appeal, the Supreme Court after referring to the provisions of Section 28(1) of the Specific Relief Act held that on passing the decree, the Court does not lose its jurisdiction nor it becomes functus officio, and 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 the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance, and it is not, unlike Section 5 of the Limitation Act, an application for condonation of delay, as it is one for extension of time. Under these circumstances, the Apex Court held that the executing Court as well as High Court rightly exercised the discretion and extended the time to comply with the conditional decree. A learned Single Judge of this Court while dealing with the case, Balasa Sarada (4 supra), held that the words ‘same suit’ mentioned in Section 28(3) of the Specific Relief Act, 1963 does not relate to execution of decree. In the said case, the trial Court already passed a decree in favour of the plaintiff and as it was not the case of the plaintiff that he is seeking further reliefs under the I.A. in question, considering Section 28(3) of the Specific Relief Act which does not empower the Court to execute the decree, it was held that since the relief sought for in the I.A. is for execution of proper document in favour of the plaintiff, the plaintiff has to approach the appropriate Court by filing a separate application to execute the decree as indicated by the trial Court. But the said observation runs contrary to the judgment of a Division Bench of this Court in Cherukuri Venkata Rao (2 supra) and therefore, the same is per incurium. The Apex Court in V.S.Palanichamy Chettiar Firm (5 supra) held that when the trial Court and the executing Court are same, executing Court can entertain an application for extension of time though the application is to be treated as one filed in the main suit, and on the same analogy, the vendor judgment-debtor can also seek rescission of the contract of sale or take up this plea in defence to bar the execution of decree. On facts, the High Court of Madras while confirming the decree for specific performance did not grant any extension of time to the decree holder for deposit of balance consideration. When the decree holder filed application for execution of the decree of specific performance of contract after five years of the decree by the trial Court and three years after dismissal of appeal by the High Court, the defendant-judgment debtor contended that the decree holder failed to deposit the balance amount of consideration in terms of the decree, and on that the executing Court dismissed the execution application holding that the balance consideration was not deposited within the time stipulated under the decree. During the pendency of the revision, the decree holder filed an application seeking extension of time granted under the decree by trial Court to deposit the amount. On the objection raised by the decree holder such an application was not filed before the trial Court, the High Court remitted the matter to the executing Court to treat the application as interlocutory application in the execution proceedings and to dispose of the same in accordance with law. While remitting, the High Court also said that in view of the decision of the Supreme Court in Sardar Mohar Singh (3 supra), the lower Court has got power to extend the time. On further appeal filed by the judgment debtor, the Supreme Court held that the High Court has not adopted correct procedure in remitting the matter to the executing Court on the objection of the judgment- debtor that too putting shackles on the discretion of the executing Court by making observation that ‘the lower Court has got power to extend the time’, though the suit was filed within three years for specific performance of contract of sale from the date of agreement, which does not absolve the plaintiff from showing as to whether he was ready and willing to perform his part of agreement and if there was non-performance was that on account of any obstacle put by the vendor or otherwise. In those circumstances, the Supreme Court framed a question ‘can the Court 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 its confirmation by the appellate Court? and answered the same in negative and accordingly allowed the appeal. The facts in Chanda (Dead) Through L.Rs. (6 supra) are that the plaintiff did not deposit balance of sale price within two months from the date of the decree, where the suit was decreed ex parte directing the defendant to execute the sale deed on payment of the balance of sale consideration and get it registered within a period of two months from the date of the decree failing which, plaintiff shall at liberty to get the sale deed executed and registered under Order XXI Rule 12 C.P.C. The plaintiff did not deposit the balance of sale price within two months from the date of the decree, but moved an application 4 years 5 months after the decree, which was allowed by the executing Court permitting to deposit the balance of sale price in which a third party got impleaded claiming that he is the owner and possessor of suit schedule property on the basis of a decree that was passed prior to the decreeing of the suit for specific performance, which the defendant was alleged to have suffered in his favour. The executing Court allowed his application and dismissed his objections holding that he is a bona fide purchaser. Thereafter, the judgment debtor filed an application under Section 28(1) of the Specific Relief Act for rescission of the agreement for the failure on the part of the plaintiff to deposit the balance of sale price, which was allowed rescinding the contract holding that the plaintiff failed to pay the balance of sale consideration. A Division Bench of this Court in Mareddi Venkata Rami Reddy (7 supra), was dealing with an issue when the appellate Court confirmed the decree of granting specific performance fixing the fresh period of three months to successful plaintiff to deposit balance of sale consideration, whether the power of the trial Court was still intact to consider the question of extension of time or not? It was held that the power of trial Court still intact to consider the question of extension in the circumstances mentioned in the affidavit, and accordingly upheld the order passed by the trail Court. In Ramankutty Guptan (8 supra), the question before the Supreme Court was whether an application under Section 28 of the Specific Relief Act, 1963 is maintainable on the execution side in the decree passed in the same suit by the appellate Court? Since the decree of the appellate Court would be construed to be the decree passed by the Court of first instance as the appeal is continuation of the suit, therefore, where a decree for specific performance has been dismissed by the trial Court, the decree by the appellate Court, it should be construed to be in the same suit. When the decree specifies time for performance of the conditions of the decree, on its failure to deposit the money, Section 28(1) of Specific Relief Act itself gives power to the Court to extend time on such terms as the Court may allow to pay the purchase money or other sum which the Court has ordered him to pay. In _______________ A. GOPAL REDDY, J. MARCH 05, 2010 Tsr. [1] 2001 (5) ALT 417 [2] 1987 (2) ALT 229 [3] (1997) 9 SCC 217 [4] 2007 (2) ALD 802 [5] AIR 1999 SC 918 = (1999) 4 SCC 702 [6] AIR 2007 SC 1514 [7] AIR 1960 AP 271 (V 47 C 83) [8] AIR 1994 SC 1699