YESHWANT SHRIPATI PATIL Vs. BALKRISHNA SAKHARAM PATIL

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 15th March, 1980 passed by the learned District Judge, Satara, dismissing Civil Appeal No. 43 of 1979 arising out of an order dated 2nd January, 1979 passed by the learned Civil Judge (Junior Division), Karad, in Regular Darkhast No. 68 of 1975 whereby he directed the Darkhast to proceed for recovery of the remaining amount of costs of Rs. 80.75 from respondent No. 1 (judgment debtor) and rejected rest of the prayers which included execution of reconveyance deed by the judgment-debtor in favour of the appellant (decree-holder No. 1). Respondent No. 1 is the original defendant (judgment-debtor). Respondent Nos. 2 to 7 are original plaintiff Nos. 2 (B to F) and 2-A and 3 (decree-holder Nos. 2 (B to F) & 2-A and 3). To-day at the hearing the learned Counsel for the respondent No. 1 Mr. K.J. Adhyankar submits that neither the first appeal before the District Court nor the second appeal before this Court is tenable after the amendment of the Civil Procedure Code by Amendment Act 104 of 1976 which came into fore on 1st February, 1977. Thereupon the learned Counsel for the Appellant prays that he be permitted to convert this second appeal into writ petition against the order of the learned Civil Judge, J.D., Karad, rejecting part of his execution application. He is permitted to convert this second appeal into writ petition and he agrees to file the necessary memo during the course of the day.

(2.) The appellant who is hereinafter referred to as "the petitioner (plaintiff No. 1)" owned along with other plaintiffs Survey No. 236/1 admeasuring 1 acre assessed at Rs. 5-11-00 which is of the village Nandgaon in Karad Tahsil of Satara District as their ancestral property. The plaintiffs were in need of money. They approached their cousin, the respondent No. 1 (defendant) for raising the amount required by them. The defendant obtained sale-deed in respect of the suit from Narayan and Daji on 19th March, 1965 and on the same day the purchaser executed an agreement in favour of the plaintiffs by which he promised to reconvey the suit land to the plaintiffs within a period of 5 years on receiving the amount paid by him to Narayan and Daji. After the stipulated period of five years was over, the plaintiffs approached the defendant and asked him to reconvey the suit land on receiving Rs. 5000/-. The defendant having refused to reconvey the suit land, the plaintiffs instituted a suit for specific performance of the agreement for sale dated 19th March, 1965 and also for getting possession of the suit land from the defendant. The defendant resisted the suit and denied that he agreed to reconvey the suit land to the plaintiffs. The learned Civil Judge found in favour of the plaintiffs and held that the plaintiffs were entitled to the reconveyance of the suit land and were also entitled to get possession of the suit land on payment of Rs. 5000/-. However, as per the agreement of reconveyance, the plaintiffs were entitled to get rebate of Rs. 150/- per year after the expiry of the period of 5 years. The learned trial Judge miscalculated the period of five years and stated that it expired on 19th March, 1969 and on that basis he held that it was 3rd year after the expiry of the term of five years and the plaintiffs were entitled to a rebate of Rs. 450/-. After deducting Rs. 450/- from the purchase money of Rs. 5000/-, he ordered the plaintiffs to deposit Rs. 4550/- within a period of one month from 12th February, 1973. He further directed that on their depositing the said amount within the aforesaid time, the defendant do reconvey the suit land in favour of the plaintiffs by making an application to the Collector for transferring the suit land in favour of the plaintiffs as required by section 31 of the B.P.F. and C.H. Act read with Rule 27(2)(e) of the B.P.F. and C.H. Rules, 1959 and by executing a registered sale-deed in favour of the plaintiffs. He further directed that the defendant should apply to the Collector as directed above within a period of one month from the date of the deposit of the amount of Rs. 4550/-. He further directed that in case the defendant failed to made such application, the plaintiffs would be at liberty to make an application to the Collectors as "person interested in the transfer of Block No. 553 of Nandgaon" and to obtain permission for the transfer of the suit land from the Collector. Upon their obtaining such permission, the plaintiffs were held to be entitled to get the suit land reconveyed to them as provided by Order 21, Rule 32 of the Civil Procedure Code. The Court further ordered that after getting the sale-deed executed, the plaintiffs would be entitled to get possession of the suit land. He directed the defendant to pay the costs of the suit to the plaintiffs and bear his own. At the end he directed that in case the plaintiffs failed to deposit the aforesaid amount within the aforesaid period, the suit would stand dismissed with costs.

(3.) The defendant preferred an appeal to the District Court which was Civil Appeal No. 92 of 1973. The learned Assistant Judge who heard the appeal found that there was some mistake in calculating the years for which the plaintiff was entitled to get rebate are the rate of Rs. 150/- per annum. He found that five years period expired on 19th March, 1970 and not on 19th March, 1969 and therefore the plaintiffs were entitled to rebate for two years only and not for three years as was ordered by the trial Court and as such the amount of Rs. 300/- only was liable to be deducted from the amount of Rs. 5000/- leaving the amount of Rs.- 4700/- to be deposited by the plaintiffs for being paid to the defendant towards the price of the land. He, therefore, modified the decree of the trial Court and substituted the figure of Rs. 4700/- in place of Rs. 4550/- occurring in the decree of the trial Court. Rest of the decree with that modification was confirmed.