SHANTI DEVI Vs. RAM NIWAS

JUDGEMENT

(1.) Heard learned counsel.

(2.) Ram Niwas Singh respondent no.1 filed Original Suit No.471 of 1979 against Vidya Sagar since deceased and survived by the petitioners and Rajesh Kumar respondent no.2 in this writ petition for specific performance of an agreement for sale executed by Vidya Sagar in favour of Ram Niwas Singh dated 14.10.1976 after receiving Rs.8,000/- as earnest money out of total sale consideration of Rs.9,000/-. Defendant no.2 Rajesh Kumar was son of defendant no.1 Vidya Sagar. The suit was decreed in part on 17/9/1980 by Munsif, Etah. Suit was decreed only for return of earnest money which was also directed to be paid in eight instalments of six months each of Rs.1,000/-. It was directed that in case of default in deposit of any instalment plaintiff would be entitled to get the sale deed executed by the court in pursuance of agreement for sale after depositing Rs.1,000/- as earnest money in court.

(3.) According to the petitioners the instalments were paid as per direction contained in the decree however, one receipt of payment of Rs.1,000/- dated 20.2.1982 (third instalment) had been lost by the judgment debtor. It is stated in paragraph-5 of the writ petition that thereafter Vidya Sagar executed the sale deed in favour of respondents 3 to 5 on 27.1.1984. On 28.4.1984 respondent no.1 plaintiff filed Execution Case No. 79 of 1984 for execution of decree. Petitioners filed objections to the execution application. In para-4 of the petition it is stated that the receipt which the plaintiff had given to the defendant acknowledging receipt of Rs.1,000/- dated 20.2.1982 (third instalment) had been lost. All other amounts (except the fourth instalment and disputed third instalment) were paid through tender, copies of which have been annexed as Annexure-3 to the writ petition. In the decree dated 17.9.1980 it was also directed that until complete payment defendant would not transfer the property in suit. The suit had been decreed on the concession made by the plaintiff himself. He agreed that in case the amount was returned to him in instalments he would not press for decree for specific performance. Plaintiff did not even press for interest. Still the defendant defaulted in payment of one instalment and put forward the case that he had paid the amount but the receipt had been lost.