MALLIKARJUN Vs. SUNANDA AND ORS.

JUDGEMENT

(1.) The present petitioner, since deceased, being represented by his legal representatives, as a plaintiff, had instituted a suit in O.S.No.644/1989, in the Court of Prl.Civil Judge (Jr.Dn.) & Prl.J.M.F.C., Dharwad, (hereinafter for brevity referred to as 'trial Court '), against the original defendants by name Smt.Sunanda, daughter of Shankar Rao Pandit (respondent No.1 herein) and Sri Shankar Rao, son of Venkatesh Pandit (respondent No.2 herein), for specific performance of an Agreement to Sell dated 24.4.1981, with respect to an immovable property. The suit came to be decreed by the judgment and decree of the trial Court on 20.2.1998. The respondent Nos.3 and 4 herein filed RA.No.41/1998 before the learned Civil Judge (Sr.Dn.), Dharwad, and later the same came to be transferred to learned II Addl.District Judge, Dharwad and renumbered as R.A.No.129/2003, which appeal came to be dismissed. Against which, they preferred an appeal in R.S.A.No.968/2004, which also came to be dismissed. The decree holder filed an Execution Petition in E.P.No.84/2006 on 3.11.2006. An application was filed for appointment of a Court Commissioner on 31.3.2008. In the meantime, the respondents 1 and 2 filed an application i.e., IA.No.III in O.S.No.644/1989 under Section 28(1) of the Specific Relief Act, 1963, seeking to rescind the contract dated 24.4.1981, inter alia contending that the decree holder has not paid the purchase money (remaining balance sale consideration of a sum of Rs.10,000/-) within the time allowed by the Court. The decree holder denied the allegations made in the said application contending that there was no specific time limit fixed for the payment of the balance sale consideration and that the Execution Petition was filed within the limitation period. However, the trial Court after hearing both side, by its order dated 21.10.2009, allowed I.A.No.III filed by the applicants and ordered that the Agreement to Sell dated 24.4.1981 has stood rescinded due to the fault of the plaintiff and thereby the judgment and decree dated 20.2.1998 has stood annulled. It also directed the judgment debtors 1 and 2 to return the earnest money of Rs.5,000/- with interest at the rate of 6% per annum from the date of the suit till the date of decree. The defendants 1 and 2 were directed to deposit the said amount in the Court within one month from the date of the order. It is challenging the said order of the trial Court allowing IA.No.III, which was filed by present respondents 1 and 2, the decree holder/plaintiff has preferred this Revision Petition.

(2.) The respondents are being represented by their respective learned counsels. The notice against respondent Nos.3 to 6 is dispensed with vide Court order dated 8.11.2010.

(3.) Heard the arguments of learned counsel from both side.