C. R. No. 5584 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 5584 of 2008 Date of Decision : February 16, 2010 Partap Singh .... Petitioner Vs. Narpat and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. B. R. Gupta, Advocate and Mr. S. S. Dinarpur, Advocate for the petitioner. Mr. M. L. Sarin, Senior Advocate with Mr. Kabir Sarin, Advocate for respondents no. 3 and 4. * * * L. N. MITTAL, J. (Oral) : Aggrieved by judgment dated 05.09.2008 (Annexure P-4), passed by learned Additional District Judge, Rewari, Partap Singh – Decree Holder (DH) has filed the instant revision petition under Article 227 of the Constitution of India, assailing the said judgment. Suit filed by the petitioner against respondent no.1 – Narpat (hereinafter referred to as Judgment Debtor (JD)) for specific performance of agreement dated 09.02.1994 to sell suit land measuring 24 kanals was decreed by learned Additional Civil Judge (Senior Division), Kosli vide judgment dated 29.04.2006 (Annexure P-1). Respondent no.2 State Bank of C. R. No. 5584 of 2008 2 India was also party to the suit. JD – Narpat preferred appeal against the said judgment and decree of the trial court. Vide order dated 29.05.2006 (Annexure P-2), Appellate Court stayed operation of judgment of the trial court and admitted the appeal. The appeal was ultimately dismissed on 05.10.2006. Regular Second Appeal preferred by Narpat was dismissed by this Court on 08.03.2007. Special Leave Petition preferred by Narpat was dismissed by Hon'ble Supreme Court on 07.05.2007. Meanwhile, the petitioner – DH filed execution petition on 13.10.2006. In the execution petition, the petitioner also prayed that he be allowed to deposit the balance sale consideration. Respondents no.3 and 4 had, in the meanwhile, purchased the suit land and other land from the JD vide sale deed dated 03.05.2006. Respondents no.3 and 4 filed objections in the execution petition. Executing Court i.e. learned Additional Civil Judge (Senior Division), Kosli, vide order dated 20.11.2007 (Annexure P-3), dismissed the objections filed by respondents no.3 and 4 and directed DH – petitioner to deposit the balance sale consideration within period of 20 days. The petitioner accordingly deposited the balance sale consideration on 23.11.2007. However, respondents no.3 and 4 preferred appeal against the aforesaid order of the Executing Court. Learned Appellate Court, vide impugned judgment dated 05.09.2008 (Annexure P-4), has allowed the appeal and set aside the order dated 20.11.2007 (Annexure P-3) passed by the Executing Court and dismissed the execution petition qua the objectors (respondents no.3 and 4 herein). However, objections filed by JD were still pending before the Executing Court. Respondents no.3 and 4, in their objections, inter alia pleaded that the DH has not deposited the balance sale consideration within two months from the date of decree of the trial court and therefore, decree is not executable. It was also alleged that the objectors are in possession of the suit property as owners in view of registered sale deed dated 03.05.2006 and the objectors were not party to the judgment and decree under execution and C. R. No. 5584 of 2008 3 therefore, objectors are not bound by the same. I have heard learned counsel for the parties at considerable length and perused the case file. At the outset, operative part of the judgment and decree dated 29.04.2006 passed by the trial court is reproduced hereunder :- “16. As a sequel to the findings on issues no.1 to 4 and 7, the suit of the plaintiff is hereby decreed with costs. The defendant no.1 is directed to execute the sale deed in favour of the plaintiff within a period of two months after depositing sale consideration by the plaintiff in the Court which shall be payable by the defendant no.1 after the registration of the sale deed. Decree-sheet be prepared accordingly. File be consigned to the record-room after due compliance.” The Appellate Court has held that since the balance sale consideration was not deposited in time nor application for extension of time was moved in the trial court, the execution petition is not maintainable. It was held that the Executing Court has no power to extend the time. The question for determination is whether the DH failed to deposit the balance sale price in time and therefore, whether any extension of time was required? My answer to this question is an emphatic `No'. Perusal of the decree passed by the trial court reveals that JD was directed to execute the sale deed in favour of DH within two months after deposit of sale consideration by the plaintiff in the Court. Thus, period of two months was granted to defendant no.1-JD to execute the sale deed and the said period was to commence on deposit of the balance sale price by the plaintiff-DH. However, no time period was fixed in the decree for the plaintiff-DH to deposit the balance sale price. No default clause was either C. R. No. 5584 of 2008 4 stipulated in the decree that in the event of the DH failing to deposit the balance sale price within the specified period, the suit shall be deemed to have been dismissed. Thus, when no time period was fixed in the decree for deposit of the balance sale price, the question of seeking extension of time to deposit the balance sale price did not arise nor the decree could become inexecutable on account of non-deposit of balance sale price within alleged specified period. This view finds support from unreported judgment dated 16.11.2009 of this Court, passed in the case of Bhim vs. Deshraj and others (C. R. No. 2523 of 2008). In that case also, defendants were directed to execute sale deed within a period of one month. It was held that no time for deposit of sale price by the DH was stipulated. In the instant case also, JD defendant no.1was directed to execute the sale deed within two months of the deposit of balance sale price by the DH, but no time period was specified for the DH to deposit the balance sale price. In addition to the aforesaid, the DH deposited the balance sale price within alleged stipulated period. As noticed herein above, trial court passed the decree on 29.04.2006 and even if it is assumed for the sake of argument that balance sale price was to be deposited within two months thereof, the DH could deposit it till 29.06.2006. However, in the meanwhile, the Appellate Court, vide order dated 29.05.2006 (Annexure P- 2), stayed the operation of the impugned judgment passed by the trial court. Consequently, the DH could not have deposited the balance sale price within the period of two months allegedly stipulated by the trial court. First appeal against the judgment and decree of the trial court was dismissed on 05.10.2006 and immediately thereafter, the DH filed execution petition on 13.10.2006. In paragraph 10 of the execution petition, the DH made specific prayer for permitting him to deposit the balance sale price. Thus, the DH was ready to deposit the balance sale price within two months of dismissal of first appeal, whereupon the interim stay granted in the first appeal stood vacated. It is different matter that the Executing Court allowed C. R. No. 5584 of 2008 5 the DH to deposit the balance sale price only vide order dated 20.11.2007 and thereupon, the DH deposited the same within three days instead of 20 days permitted by the Executing Court. Thus, DH made prayer for deposit of the balance sale price much before the expiry of two months from the judgment and decree of the first Appellate Court. In addition to the aforesaid, it may also be noticed with significance that the first Appellate Court, vide order dated 29.05.2006, had stayed the operation of the judgment of the trial court. However, admittedly the first Appellate Court, while dismissing the appeal on 05.10.2006, did not specify any period for deposit of balance sale price by the DH. Same is the position regarding second appeal and Special Leave Petition. Thus, there was no default in timely deposit of the balance sale price by the DH. Learned counsel for the objectors – respondents no.3 and 4 vehemently contended that under Section 28 of the Specific Relief Act, 1963 (in short – the Act), only trial court and not the Executing Court has the jurisdiction to extend time for deposit of the balance sale price. Reliance in support of this contention has been placed on two judgments of Hon'ble Supreme Court in the case of Ramankutty Guptan vs. Avara reported as AIR 1994 Supreme Court 1699 and in the case of Chanda (Dead) through LRs vs. Rattni and another reported as AIR 2007 Supreme Court 1514. However, in the instant case, the DH was not required to seek extension of time to deposit the balance sale price for reasons recorded in the preceding paragraphs. Moreover, in the case of Ramankutty Guptan (supra), the Hon'ble Apex Court observed that application for extension of time for payment of balance consideration may be filed even in the Court of first instance or in the Appellate Court in the same suit. It was also observed that procedure is the hand-maid for justice and unless the procedure touches upon the jurisdictional issue, it should be moulded to subserve substantial justice and therefore, technicalities would C. R. No. 5584 of 2008 6 not stand in the way to subserve substantive justice. It was observed that where the decree is transferred for execution, the transferee Executing Court is not the original Court and it would not be the same Court within the meaning of Section 28 of the Act, but when execution application has been made in the Court in which the original suit was filed and the execution is being proceeded with, then certainly an application under Section 28 of the Act is maintainable in the same Court. Moreover, even Executing Court can treat the application to be on original side of the trial court, if it happens to be the same Court. On the other hand, learned counsel for the petitioner has relied on various judgments to contend that even the Executing Court can extend time for payment of balance sale price. In a case in Patna High Court titled Bibi Raushan Ara and another vs. Narendra Kumar Gupta and others reported as 2004 AIR (Patna) 108, plaintiff deposited balance sale consideration within time extended by the Executing Court, which was also the trial court. It was held that no case for rescission of contract was made out. In judgment of Hon'ble Supreme Court in the case of Sardar Mohar Singh through Power of Attorney Holder Manjit Singh vs. Mangilal @ Mangtya reported as 1997 (2) R.C.R. (Civil) 296, the Hon'ble Supreme Court observed that Executing Court as well as the High Court had exercised discretion and extended time to comply with the conditional decree and there was no reason to interfere with the order passed by the High Court. Thus, the discretion exercised by the Executing Court, for extension of time, was upheld. In judgment of this Court in the case of Mohinder Singh vs. Gurdial Singh reported as 1997 (1) P.L.R. 73 also, it was held that Executing Court has jurisdiction to extend time to comply with the requirements of the decree. This Court, in the case of Balkar Singh and others vs. Manmohan Singh and others reported as 1995 (3) P. L. R. 328, while dismissing the appeal, did not fix any time to deposit C. R. No. 5584 of 2008 7 the balance sale price. It was held that a clear case of default has to be established against the DH for rescinding the contract or to nullify the decree for specific performance. This Court in the case of Gurmukh Singh and others vs. Phool Chand reported as 1991 (1) Cur. L. J. 34, held that balance amount was deposited within time allowed by the Executing Court. It was held sufficient compliance. In the case of Amar Nath Jain vs. Ram Parkash Dhir reported as 1987 (1) P.L.R. 490, even application was not moved for extending the time, but the Court allowed the DH time to deposit the amount. It was held by this Court that it will be presumed that time was extended, although no application was made in that behalf. In the case of Gurdit Singh vs. Jagjit Singh reported as 1987 (1) P.L.R. 129, this Court held that a clear case of default has to be established against the DH for rescinding the contract or nullifying the decree of specific performance. In the case of Shmt. Sarupi and others vs. Har Gian and others reported as AIR 1975 Punjab and Haryana 231, it was held by this Court that if there is no default clause in the decree, failure to deposit the balance sale price would not automatically make the decree inexecutable. However, the default in deposit of sale price would entitle the vendor (JD) to apply for rescission of contract under Section 28 of the Act. In the case of Nanha vs. Risala and another reported as Vol.CXL VII-(2007-3) The Punjab Law Reporter 260, time was stipulated for deposit of balance sale consideration, but there was no default clause. There was also no abnormal delay in depositing the balance sale price. It was held by this Court to be a fit case to extend the time. In the case in hand, as noticed herein above, no time was fixed in the decree for deposit of balance sale price by the DH. Secondly, operation of judgment of the trial court was stayed by interim order in first appeal and after dismissal of first appeal, the DH immediately filed execution petition and also made prayer for permission to deposit the C. R. No. 5584 of 2008 8 balance sale price. Without order of the Executing Court, the treasury or bank would not have accepted the balance sale price. However, the Executing Court passed order on 20.11.2007 only, directing the DH to deposit the balance sale price and the DH accordingly deposited the same. Thus, examined from any angle, in the instant case, there has been no lapse or default on the part of the DH. At the risk of repetition, it may be added that Appellate Courts did not fix any time for the DH to deposit the balance sale price. In addition to the aforesaid, neither JD nor objectors- respondents no.3 and 4 filed any application under Section 28 of the Act for rescission of the contract. For this added reason as well, the execution petition filed by the DH could not be dismissed by the Appellate Court. The approach of the Appellate Court in the impugned judgment is completely erroneous, irrational, illogical and unsustainable in law. Learned counsel for the objectors-respondents no.3 and 4 also contended that the Executing Court decided the objections without framing issues and without recording evidence, but this could not be done. Reliance in support of this contention has been placed on a judgment of this Court in the case of Gram Panchayat, Hasanpur vs. Jagdish Chand and others reported as 2008 (1) Civil Court Cases 364 (P&H). The Appellate Court also made reference to this judgment to hold the order of the Executing Court to be bad in law. However, if this judgment was to be followed, then the objections should have been remanded by the Appellate Court to the Executing Court for decision after framing issues and recording evidence. The Appellate Court, however, straightway dismissed the execution petition qua the objectors, thereby allowing objections of the objectors without framing of issues and recording of evidence. Be that as it may, the aforesaid contention raised by learned senior counsel for respondents no.3 and 4 is completely devoid of merit, although on first blush, it may appear to be very attractive. In the case of Gram Panchayat, Hasanpur (supra), it was C. R. No. 5584 of 2008 9 held that objections filed by third party (i.e. not party to the decree) have to be disposed of after framing issues and giving opportunity to lead evidence. In the instant case, however, objectors-respondents no.3 and 4 cannot be said to be strangers or third party because they purchased the suit land vide sale deed dated 03.05.2006 i.e. after passing of decree dated 29.04.2006 by the trial court. Consequently, the objectors stepped into the shoes of the JD and therefore, they are bound by the decree in the same manner as the JD is bound by it. Consequently, for disposing of the objections filed by respondents no.3 and 4, who are deemed to be JDs, neither issues were required to be framed, nor evidence was required to be recorded. Moreover, the facts in the case being undisputed, for this reason as well, there was no necessity of framing of issues and recording of evidence to decide the objections preferred by respondents no.3 and 4. As a necessary consequence of my aforesaid discussion, I have no hesitation in concluding that the impugned judgment dated 05.09.2008 (Annexure P-4) passed by learned Additional District Judge, Rewari is patently illegal, erroneous and unsustainable in law. The revision petition is accordingly allowed and judgment dated 05.09.2008 (Annexure P-4) passed by learned Additional District Judge, Rewari is set aside and order dated 20.11.2007 (Annexure P-3) passed by the Executing Court is restored. The Executing Court is directed to proceed with the execution petition in accordance with law. February 16, 2010 ( L. N. MITTAL ) monika JUDGE