K KANNAPPAN Vs. C S SELVARAJ

JUDGEMENT

(1.) CHECKERED history of the litigation is required to be noticed as briefly as possible. The present appellant and his father had filed C. S. No. 243 of 1980 in the Original Side of the High Court of Madras for specific performance of the contract for sale dated 13. 12. 1978. Learned single Judge of this Court by judgment dated 20. 9. 1982, decreed the said suit. The defendants, however, filed O. S. A. No. 213 of 1982. The Division Bench by judgment dated 28. 11. 1990, allowed the appeal and remanded the matter to the learned single Judge for re-hearing. Thereafter, by judgment dated 18. 1. 1994, the suit was again decreed with costs and since the amount required to be paid was already in court deposit, learned single Judge directed the defendants to execute the sale deed within a period of two weeks. The defendants again filed O. S. A. No. 89 of 1994. The Division Bench by judgment dated 23. 11. 2001, while confirming the findings of the learned single Judge and dismissing the O. S. A. , observed as follows :-

(2.) AFTER the above chapter was closed, a new chapter was opened. The plaintiff/appellant, who was required by the High Court to deposit a further sum of Rs. 1,00,000/- in the judgment dated 23. 11. 2001 within a period of 8 weeks from the date of receipt of a copy of the order, made such deposit on 11. 2. 2002 by obtaining a certificate from the Registrar in terms of Order 31 Rule 2 and 3 of Original Side Rules and was thereafter pursuing the matter in execution proceedings in E. P. No. 51 of 2002. At that stage, fourth defendant filed Application No. 5348 of 2002 under Section 28 of the Specific Relief Act to rescind the contract as the plaintiff/appellant had not paid the money within the period stipulated by the judgment dated 23. 11. 2001 in O. S. A. No. 89 of 1994. In the affidavit filed in support of such application, it was stated that the plaintiff had been directed to deposit a sum of Rs. 1,00,000/- before the trial court within 8 weeks from the date of receipt of the order. It was stated :

(3.) AT that stage, the present appellant filed a counter affidavit, wherein it was indicated that the defendants had filed O. S. A. No. 89 of 1994 and had sought for stay of execution of the decree i. e. , execution of the sale deed and also dispossession from the disputed property. Even though the Division Bench declined to stay the execution of the sale deed, there was stay of dispossession with a direction that the judgment debtors to pay a sum of Rs. 2,000/- per month for use and occupation of the property during pendency of the appeal by order dated 4. 4. 1994 in C. M. P. No. 4824 of 1994. Subsequently, the sale deed was executed by the Assistant Registrar, Original Side, High Court, Madras as the defendants had not executed the sale deed. It was therefore indicated that applicant had violated the order of the Bench by not remitting the amount and had been collecting more than Rs. 10,000/- from the tenants in occupation of the house. Regarding the specific averment relating to steno copy application, there was no specific averment made by the present appellant. However, it was stated that the defendants had applied for certified copy of the judgment in Copy Application No. 9888 of 2002 on 26. 11. 2001 and stamps were called for on 18. 2. 2002 and copy of the order was made available on 19. 2. 2002. However, before the said date an additional sum of Rs. 1,00,000/- had been deposited on 11. 2. 2002 and as such there was substantial compliance of the order passed by the Division Bench on 23. 11. 2001.