VISHWANATH Vs. KADAMMAND OTHERS

JUDGEMENT

(1.) This is defendant's second appeal from the judgment and decree dated 26-10-1990 passed by the Civil Judge, Yadgir, in R.A. 40/1982 allowing the plaintiff's appeal and decreeing the plaintiff's suit for specific performance of contract. After having set aside the judgment and decree dated 16.6.1982 passed by the Munsiff, Shahapur, in O.S. 165/80.

(2.) The brief facts of the case are that Sanganna s/o Kadappa who was the owner in possession of the house in suit had sold the house in suit in favour of Vishwanath, Defendant No. 1 in the suit that is the present appellant by the registered sale deed dated 19.4.75. The plaintiff's case is that the plaintiff's father remained in possession of the suit house during his life time and after the death the plaintiffs came into and remained in possession of the suit house till June 1981. According to the plaintiff's case some dispute arose giving rise to the filing of O.S. 45/76 which ended in a compromise entered into between the parties as per one of the terms thereof it was provided that the defendant No. 1 that is the appellant is the owner of the house in suit on the basis of a registered deed. As per the compromise it was agreed admitted and settled that defendant No. 1 that is the present appellant was the owner of the house on the basis of the registered sale deed dated 26.4.1976. An agreement was also arrived at between the parties to the effect that the father of plaintiffs-respondents 3 to 6 should pay Rs. 2,000.00to defendant-1 on or before 5.6.1976 in cash or deposit the same in Court, and that on the payment or deposit of that amount the defendant-1 that the present appellant would execute a registered sale deed in favour of father of plaintiffs-respondents 3 to 6 in respect of the house in suit. It was also settled that in case defendant-appellant failed to pay Rs. 2,000.00 to Sanganna would be legally entitled to get the sale deed of the suit house executed at the costs of defendant-1 through the Court. The plaintiff's case has been that the plaintiffs-respondents deposited a sum of Rs. 2,000.00 on 2.6.1976 as per the term of the comprise and so the plaintiffs 3 to 6 bona fidely filed an application for execution of that decree dated 9-7-1976 against present defendant appellant and prayed for a direction that the judgment-debtor present appellant be directed to execute the registered sale deed as per the terms of the compromise. It appears that, present defendant 1, that is present appellant filed objections to execution of decree to the effect that the decree was not executable in the basis of the compromise as such the b application filed by the father of plaintiffs 3 to 6 was mis-conceived application and was not maintainable. That the execution Court held that the decree to be executable as prayed for by the present plaintiffs-respondents. From that judgment of the execution Court dated 17.2.1977 where under the Court, held that the decree is executable and provided that the present defendant-appellant would have to execute sale deed. From that decree the present appellant filed by the execution appeal. The appellate Court set aside the order of the civil Judge and held that the terms of the compromise decree shown in the schedule have only the effect of making of a contract between the parties super added with seal of Court of that contract. But those terms cannot be taken to be the part and parcel of the operative and executable decree, decree by itself being beyond the scope of suit. The Court took the view that the suit was only for declaration and so far as this term that has been added may be said to be an agreement to be enforceable through the instrumentality of the Court by separate action i.e. suit for specific performance of contract. The appellate Court took the view that the term that on payment of Rs. 2,000.00 the defendant-appellant will execute the sale deed in favour of the plaintiff-respondents father was not term which could be said to be executable under that decree instead the plaintiff-respondents can have only recourse of filing the suit for specific performance of contract to execute the sale deed. The appellate Court passed the order on 25.7.80. The plaintiff-respondent as such filed regular suit 165/80 on 28.8.80 indicating the cause of action for the suit to have accrued on 14.8.80 when defendant refused to execute the sale deed. The plaintiffs alleged that they have performed their part of the contract by depositing a sum of Rs. 2,000.00 which had been agreed in the trial Court. On notice being issued to the defendant, the defendant contested the suit on several grounds including the ground to the effect that the plaintiff's suit was not maintainable and was barred by time. The trial Court framed the following issues :

(3.) The trial Court answered issues 1, 2, 4 and 5 in negative. On the question of limitation the trial Court held that the suit was not within time and as such dismissed the plaintiffs suit. Having felt aggrieved from the judgment and decree of the trial Court dismissing the plaintiffs suit the plaintiff-respondent filed regular civil appeal 40/82. The lower appellate Court held that the plaintiff-respondent had been entitled to the exclusion of time during which he had been duly and bona fidely prosecuting the execution proceedings so was entitled to get benefit of Sec. 14 of the Limitation Act. It further held that the plaintiff-respondents have been able to establish that they have been prosecuting the execution proceedings in E.P. 8/1976 before the Court of Munsiff, Shorapur, bona fide and in good faith. The lower appellate Court decreed the plaintiff-respondents suit for specific performance of contract to execute the sale deed and directed the defendant in the case who was respondent before it, who is appellant before this appellate Court to execute the sale deed in favour of the plaintiff-respondents and defendant-appellants and on failure to do so plaintiff would be entitled to get the same through the agency of the Court. It further observed that the defendant who was the respondent before it, was entitled to receive Rs. 2,000.00 which had been deposited by the plaintiffs in the Court of Munsiff, Shorapur. Feeling aggrieved from the judgment and decree of the lower appellate Court the defendants have come up in second appeal before this Court.