PANDURANG SAZO GAONKAR Vs. ADOLFO GOMES

JUDGEMENT

(1.) Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Petitioner and Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Respondents. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the Respondents, waive service.

(2.) The above Petition challenges the Order dated 12-3-2009 passed by the learned Civil Judge, Senior Division, in Execution Application No. 5/1999/B, whereby the execution proceedings initiated by the Petitioner came to be dismissed.

(3.) Briefly, the facts of the case are that the Petitioner filed a Civil Suit bearing No. 75/1976/B, in the Court of the learned Civil Judge, Senior Division at Panaji, for declaration and permanent injunction in respect of an immovable property consisting of two pieces of land adjoining one another known as 'Horta De Seminario Chorao' or 'Quinta De S. Januario Ou Jeronimo', registered in the Land Registration Office of Ilhas, under No. 276 and 407 and enrolled in the Taluka Revenue Office under Nos. 2510 and 2216 situated at Chorao Village of Ilhas Taluka, admeasuring about 39525 square metres, which is surveyed in the Record of Rights under Survey No. 172, sub-divisions 1 and 2 of Chorao Village. The said suit was filed against the Judgment Debtors who were the owners of the said property. During the pendency of the said suit, the parties had arrived at a settlement and consequently an agreement was executed on 20-8-1982 by virtue of which said Judgment Debtor Adolfo Gomes for self and on behalf of the other co-owners of the suit property agreed to sell the suit property for a total consideration of Rs. 1,25,000/-. After the execution of the said Agreement, the Petitioner and the said Judgment Debtor acting on behalf of himself and the other co-owners filed a pursis setting out the fact that the said Judgment Debtor/Adolfo Gomes and others had agreed to sell the suit property to the Petitioner for a total consideration of Rs. 1,25,000/-. The consent terms as well as the Agreement were produced which disclosed that sum of Rs. 20,000/- was paid by the Petitioners to the said Judgment Debtor by way of earnest money and part payment of the purchase price and the remaining sum of Rs. 1,05,000/- was agreed to be paid in five equal instalments on 20th day of August of the years 1983, 1984, 1985, 1986 and 1987 which instalment was of the sum of Rs. 21,000/- each. It was further stipulated that the Petitioner was also liable to pay along with each of the instalment, interest at the rate of 10 percent per annum accrued on the balance amount due on the relevant date. According to the Petitioner, the said sum of Rs. 1,05,000/- including the interest of the last instalment of Rs. 23,100/- was paid on 1-8-1987. After receiving the said last and final instalment, the Judgment Debtor delayed in the execution of the sale deed on one pretext or the other and, consequently, the Petitioner on 4-1-1999 filed the application for execution of the consent decree under Order XXI, Rule 34 of the Civil Procedure Code.