VEERAPPA Vs. BASAVANYAPPA

JUDGEMENT

(1.) These are the plaintiffs' writ petitions challenging the common order passed by the Executing Court, on I.A. No. 1, an application filed under Section 28(2) of the Specific Relief Act, 1963 and I.A. No. 2, an application filed under Section 151 of Code of Civil Procedure, 1908. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

(2.) Defendant is the owner of the property, which is more fully described in the schedule and (hereinafter referred to as the 'schedule property'). The schedule property is a vacant site. The plaintiffs entered into an agreement to purchase the said schedule property on 31-6-1969 for a sum of Rs. 1,500/-. A sum of Rs. 400/- was paid in advance as execution of the agreement. In part performance of the sale, possession is also delivered. When the defendants did not execute the sale deed, plaintiff filed O.S. No. 119 of 1973 for the relief of specific performance of the agreement of sale. The suit, after contest came to be decreed on 25-9-1978. The defendants, being aggrieved by the said judgment and decree, preferred an appeal in R.A. No. 111 of 1979. The said appeal also came to be dismissed on 30-3-1982. There was no further appeal. The plaintiff filed execution petition in Execution Case No. 15 of 2010 on 4-3-2010. In the said execution petition, the defendant filed an application under Section 28(2) of the Specific Relief Act for recession of the contract and directing the plaintiff to restore possession. That application was filed on 4-3-2010. After the filing of the said application, the plaintiff opened his eyes and filed an application under Section 151 of CPC on 23-7-2011 for condoning the delay in payment of the balance sale consideration in terms of the decree. Both the applications were considered together and by the impugned order, the plaintiffs application was dismissed and the defendants application is allowed. It is against these two orders, the plaintiffs are before this Court.

(3.) Learned Counsel for the plaintiffs/petitioners submits that in the first place, no period was stipulated for the payment of balance sale consideration in the decree and therefore, it is not correct to say that the balance sale consideration is not paid within the period of limitation of 12 years. Therefore, he further submits, the execution proceedings in respect of a decree for specific performance is in the nature of continuation of the suit and therefore, this execution application could not be dismissed on that ground. Further, under Section 28(2), the Court has amicable power to extend the time for payment of balance sale consideration, which power has not been properly exercised by the Trial Court. Lastly, it is contended that if the execution petition is barred by time, the same is not maintainable and therefore, the Trial Court committed a serious error in allowing the said application and therefore, he submits that the order cannot be sustained.