POOJA ENTERPRISES Vs. KISHANLAL HARIRAM SHROFF

JUDGEMENT

(1.) To state in brief, the plaintiffs/respondents had filed Special Civil Suit No.1042 of 1988 for specific performance of the contract of sale of the suit property for consideration of Rs.65,000/-. According to the plaintiffs, an amount of Rs.47,001/- was already paid and balance amount of Rs.17,999/- was yet to be paid. The suit was contested. After hearing the parties, the trial Court passed the Judgment dated 5.12.1998. By the said judgment, the suit for specific performance of contract for sale was decreed and the plaintiffs were directed to deposit the balance amount of Rs.17,999/- in the Court within one month from the date of the judgment and it was directed that on the money being deposited, the defendants Nos. 1 and 2 shall execute the sale deed within one month from the date of deposit, failing which the plaintiffs would be entitled to have sale deed executed through Court. There is a further direction in the decree that if the plaintiffs fail to deposit the amount within the time allowed, the suit will stand dismissed with costs to the defendants. As the judgment was passed on 5.12.1998, the balance amount of consideration was required to be deposited on or before 5.1.1999. Admittedly, the amount was not deposited by the plaintiffs within the stipulated period. On 11.6.1999, the plaintiffs filed an application before the trial Court seeking permission to deposit the amount. On the same day, the learned trial Court directed the Nazir of the Court to accept the amount and accordingly the amount was deposited on that day. After the said deposit, on 16.8.99, the plaintiffs/decree holders filed execution petition seeking execution of the sale deed and possession. It appears that the Court appointed a Commissioner and directed the said Commissioner to execute the sale deed in favour of the plaintiffs/decree holders for and on behalf of the defendants/judgment debtors. That order was passed on 4.5.2001 and accordingly the sale deed came to be executed and registered, however possession is not yet given to the plaintiffs.

(2.) The defendants, who are the revision-applicants before this Court, filed an application before the executing Court in Special Darkhast No.211 of 1999 contending that the plaintiffs had failed to deposit the balance amount of consideration within one month from the date of the judgment dated 5.12.1998 and in view of the specific direction given in the said decree, on expiry of one month due to non-deposit of the amount, the suit itself stood dismissed and therefore the decree could not have been executed and the said Darkhast should be dismissed with costs. That application was opposed. After hearing the parties, the executing Court passed the impugned order on 11.10.2000 and rejected the application filed by the judgment debtors. The main reason given by the executing Court was that the trial Court had already permitted the amount to be deposited and secondly the appeal by the defedants was not filed within limitation and the application for condonation of delay was rejected by the learned Single Judge of this Court and the Letters Patent Appeal was also dismissed. It was stated that in view of that the Appeal itself was dismissed and the decree had become final. The defendants have preferred the present Revision Application challenging the order dated 11.6.99 whereby the trial Court had allowed the plaintiffs/decree holders to deposit the amount in the Court and also the order dated 11.10.2000 passed by the executing Court rejecting the objections taken by the defendants/judgment debtors under Section 47 of C.P.C.

(3.) Admittedly, the defendants had preferred an appeal against the judgment and decree before the High Court, but as there was delay, they had also filed Civil Application for condonation of delay. That Application for condonation of delay came to be dismissed by the learned Single Judge of this Court. Against that order, the defendants had filed Letters Patent Appeal before the Division Bench. That Appeal was also dismissed. Thereafter, the defendants filed Special Leave Petition and the Special Leave Petition was allowed and delay was condoned and the High Court was directed to hear the First Appeal No.529 of 2001 on its merits. The Appeal has been admitted and it is still pending for final disposal. Therefore, in this Revision, it is not necessary nor it is desirable to make any observations about the merits and the rival contentions in the said suit or the Appeal. However, as the appeal is still pending it canot be said that the decree has become final.