M MOHAMMAD ASLAM Vs. C N A GOWTHAMAN

JUDGEMENT

(1.) The applicants herein are the legal heirs of the deceased Plaintiff, who has filed the suit for specific performance of the agreement of sale deed 8-4-1995 and supplementary agreement dated 18-5-1996 which was decreed by this Court on 21-3-2001 granting time for deposit of balance consideration by eight weeks. It was also further directed by this Court that the defendant shall not be allowed to withdraw the amount without redeeming the mortgage created in favour of Bank of Baroda, Nungambakkam Branch, Chennai. After the death of the Decree-holder-Plaintiff, his legal heirs have filed application in Diary No. 28075 of 2002 seeking permission of this Court to withdraw the sum of Rs. 11,17,000/- deposited to the credit of the above suit, which was rejected. This Application No. 5418 of 2002 is filed by the legal heirs to rescind the contract entered into between the deceased plaintiff and the defendant and to direct the defendant to pay the sum of Rs. 6,18,000/- with interest @ 18% from 18-5-1996 till the date of realisation and Application No. 5419 of 2002 is filed seeking permission of this Court to withdraw the amount of Rs. 11,70,000/-.

(2.) Mr. Satish Parasaran, learned counsel appearing for the applicants submitted that the applicants 2 to 6 have given a power of attorney dated 25-6-2002 to the 1st applicant to represent them and by order dated 10-10-2002, this Court recognised the applicants herein as legal heirs of the deceased plaintiff; that the suit filed by the plaintiff was decreed on 21-3-2001 thereby the plaintiff was directed to deposit the balance sale consideration of Rs. 11,70,000/- within eight weeks from the date of decree; that the last date for deposit of the said sum was 15-5-2001, but by oversight the last date for deposit was wrongly noted by the counsel as 17-5-2001 with the result the same could not be deposited in time; that the plaintiff has filed an application and sought extension of time for depositing the amount and the same was also ordered and the amount was deposited into the Court; that the defendant neither complied with the terms of the decree nor withdrawn the sale consideration and executed the sale deed in their favour. In the meanwhile, the plaintiff had passed away on 27-2-2002 leaving behind the applicants herein as his legal heirs; that the applicants require funds for performing marriage, to improve the business etc; that an application was filed by the applicants seeking permission of this Court to withdraw the sum of Rs. 11,70,000/- which was rejected by this Court on the ground that the applicants have not chosen to execute the decree passed; that the respondent has allegedly filed a petition to set aside the decree, which was passed ex parte, which shows that the respondent is not interested to comply with the decree and for that reason and for other reasons, the applicants have not intended to execute the decree and prayed for allowing the applications.

(3.) Mr. Prakash Goklaney, learned counsel appearing for the respondent, relying on the common counter filed in both the applications submitted that the applicants have filed an application similar to O. A. No. 5419 of 2002, which came up for maintainability before this Court and the same was rejected on 22-11-2002; that having obtained a decree for specific performance, it is not open to the applicants to go back; that no other alternate relief was claimed by the plaintiff in the suit; that the applications are contrary to the decree passed by this Court and prayed for dismissal.