SAKHUBAI LAXMAN NASLE Vs. GANGUBAI PRAKASH PILLEY

JUDGEMENT

(1.) In the instant matter, in Special Civil Suit No. 149/1992, a suit for specific performance, a decree was passed by the trial court on 17/6/1998 decreeing the specific performance by directing the defendant to execute the Sale Deed within two months upon receipt of the balance consideration and an appeal filed against the same, Regular Civil Appeal No.178/1998, came to be dismissed on 8/1/2002. It is an admitted position that there was no stay in Regular Civil Appeal No.178/1998. Neither the Sale Deed was executed nor the balance consideration was paid, nor for that matter deposited with the court within the time frame, as stipulated by the trial court in the Judgment and decree dated 17/6/1998.

(2.) The impugned order records that the plaintiff/ D.H. had deposited Rs.25,000/- in the CCD of the trial court on 8/12/2003, at the time of filing of the execution application in the execution proceedings.

(3.) An application came to be filed by the defendant/J.D. under Section 28 of the Specific Relief Act and Sections 148 and 151 read with Order XXI of the Code of Civil Procedure for recession of the contract, which has been rejected by the executing court by the impugned order dated 3/1/2018 holding that since the deposit had been made on 8/12/2003, the recession could not be ordered. It also held that the executing court could not go beyond the decree and could only decide the questions involved in the proceedings before it, on which count also it held that the Application under Section 28 of the Specific Relief Act was not maintainable before the executing court.