Civil Revision No. 173 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Civil Revision No. 173 of 2003 Date of Decision: 27.4.2011 Darshan Ram ..Petitioner Versus Bachna (died) through LRs ..Respondent CORAM: HON’BLE MR. JUSTICE RAJIVE BHALLA Present:-Mr. B.S.Rana, Advocate for the petitioner. RAJIVE BHALLA, J. ( ORAL) The petitioner impugns an order dated 5.10.2002, passed by the Additional Civil Judge (Senior Division), Anandpur Sahib, dismissing his application for deposit of balance sale consideration while accepting an application filed by the respondent/judgment- debtor for rescission of the contract, thereby holding that the executing petition is not maintainable. The admitted facts are as follows: The respondent, Bachna, entered into agreement to sell land measuring 5-1/2 Marlas @ Rs. 4000/- Per marla. The petitioner paid Rs.10,500/-. As the respondent did not come forward to execute the sale deed, the petitioner filed a suit for specific performance. The suit was decreed by the Additional Civil Judge (Senior Division), Anandpur Sahib on 30.8.1996. The petitioner and the respondent were directed to execute the sale deed and deposit the balance consideration, respectively, within two months. An appeal filed by the respondent was dismissed on 19.7.2001. Civil Revision No. 173 of 2003 2 The petitioner filed an execution petition and during its pendency filed an application for extension of time to deposit balance sale consideration. The respondent, in turn, filed an application, that as the petitioner has failed to deposit balance sale consideration within the time set out in the decree, the contract stands rescinded and the decree rendered unexecutable. By way of the impugned order, the Additional Civil Judge (Senior Division), Anandpur Sahib, has rejected the prayer for extension of time, accepted the plea of rescission of contract, and held that the the execution petition is not maintainable. Counsel for the petitioner submits that the decree under execution is a conditional decree. A conditional decree may or may not prescribe the consequence of default in complying with the conditions imposed by the decree. The decree in execution does not prescribe the consequence of default in depositing balance consideration. The executing court has, therefore, erred in holding that the contract stand rescinded, the execution petition is not maintainable and time for deposit of the balance sale consideration cannot be extended. It is further argued, by referring to a large number of precedents, that where a decree does not prescribe the consequences of default, a contract cannot be said to be rescinded and the decree holder may pray for extension of the time. Counsel for the petitioner places reliance on judgments reported as Sardar Mohar Singh through Power of Attorney Holder, Manjit Singh vs. Mangilal @ Mangtya , 1997 (2) R.C.R. (Civil) 296 SC; Kumar Dhirendra Mullick v. Tivoli Park Apartments (P) Ltd., 2004 (9) JT 446 SC; Sham Kaur vs. Malagar Singh and another , 2004 (1) PLR 814; Mohinder Singh Versus Gurdial Singh, 1997(1) PLR 73; Nanha Civil Revision No. 173 of 2003 3 Versus Risala and another, 2007 (5) RCR (Civil) 655 (P&H); Jai Singh Versus Puran Singh , 1990 (2) PLR 569 and Yeshoda Versus K. Nagarajan, 1997(1) RCR (Civil) 583, Nirmala Anand Versus Advent Corporation Pvt. Ltd & others, 2002(2) RCR (Civil) 815; Chanda (dead) Through LRs Versus Ratni and another, (2007) 14 Supreme Court Cases 26; Rohtas Singh versus Commissioner, Agra Division and others, AIR 1997 Allahabad 278; and Angrej Singh Versus Col Gurdial Singh and another, 1988 PLJ 566. No one is present on behalf of the respondent. I have heard counsel for the petitioner. The questions that arise for adjudication are - (a) the nature of a conditional decree; (b) the jurisdiction of an executing court while considering a plea for rescission of a contract for failure to deposit balance consideration; and (c) right of a decree holder to pray for extension of time to deposit the balance sale consideration. A decree for specific performance of a contract, generally, stipulates conditions, that require a decree-holder to deposit balance sale consideration, and the judgment debtor to execute a sale deed, within a fixed time period. A court may, or may not, while imposing these conditions, set out the consequence of default, whether on the part of the decree holder or the judgment debtor in complying with these conditions. The conditions that are generally imposed are the dismissal of the suit if balance consideration is not deposited within the time period fixed and a right to the decree holder to approach an executing court, if the sale deed is not executed. If a conditional decree that prescribes, the consequences of default in not depositing the sale consideration within the time, so fixed, is not adhered to the contract under execution stands rescinded and the Civil Revision No. 173 of 2003 4 decree rendered unexecutable, except if time for deposit is extended by a court of competent jurisdiction. Where, however, a decree does not contain a default clause, providing for dismissal of the suit for failure to deposit balance sale consideration within the time so fixed, the contract shall not be rescinded. The decree holder would be required to file an application before the court that passed the decree for extension of time to deposit the balance sale consideration. If the court does not extend the time, the contract shall stand rescinded and the decree rendered unexecutable. The decree, passed in the present case, reads as follows: “ It is hereby ordered that the suit of the plaintiff is decreed for the specific performance of the agreements dated 22.5.92 and 5.6.92 and accordingly, the defendant is directed to execute the sale deed in respect of 0 Kanal 4 marlas of the land measuring 0 kanal 8 marlas bearing Kh. No. 146 and in respect of 0 kanal 1-1/2 marlas being 1/2 share the abadi area as delineated in the site plan Ex. P3 qua his ½ share as depicted with the letters A B GH E F in plan `B' as shown in site plan. Ex P3 after the removal of the chhapper raised thereon on receipt of the balance sale consideration. 1/2 share of the abadi area will be subject to partition between the plaintiff and the other co-sharer namely Rattna, brother of the defendant. The defendant is directed to execute the sale deed regarding the suit property within a period of two months failing which the plaintiff shall be entitled to get the same executed by way of executing the decree. The plaintiff is obliged to deposit the balance sale consideration with the court within a period of two months. Civil Revision No. 173 of 2003 5 The suit of the plaintiff is decreed with costs.” The decree reproduced above, does not contain any clause prescribing the consequence of default in depositing the balance consideration as it merely directs the petitioner to deposit the balance sale consideration within two months. The absence of a clause in the decree providing consequences of a default, does not lead to an automatic rescission of the contract or render a decree unexecutable for failure to deposit the balance sale consideration. Reference in this regard may be made to the following precedents:- Sardar Mohar Singh through Power of Attorney Holder, Manjit Singh vs. Mangilal @ Mangtya Kumar Dhirendra Mullick v. Tivoli Park Apartments (P) Ltd., Sham Kaur vs. Malagar Singh and another, Mohinder Singh Verus Gurdial Singh, Nanha Versus Risala and another, Jai Singh Versus Puran Singh and Yeshoda Versus K. Nagarajan, Nirmala Anand Versus Advent Corporation Pvt. Ltd & others, Chanda (dead) Through LRs Versus Ratni and another, Rohtas singh versus Commissioner, Agra Division and others, and Angrej Singh Versus Col Gurdial Singh and another cases (supra). The trial court, accepted the respondent's application for rescission of the contract on an erroneous understanding of the nature of a conditional decree. The trial court failed to discern the absence of a default clause in the decree and, therefore, committed an error in holding that the contract stood rescinded and the decree rendered unexecutable for failing to deposit the balance sale consideration. The petitioner's application seeking deposit of the decretal amount filed together with the execution petition would, therefore, have been re-considered and decided in accordance with law. Civil Revision No. 173 of 2003 6 In view of what has been stated here-in-above, the revision is allowed, the order dated 5.10.2002 is set aside and the matter is remitted to the trial Court to decide the execution petition and the application filed by the petitioner seeking deposit of sale consideration, afresh and in accordance with law, within three months of receipt of a certified copy of this order. 27.4.2011 ( RAJIVE BHALLA ) VK JUDGE