RAJENDER PERSHAD Vs. RAJA RATAN GOPAL

JUDGEMENT

(1.) aggrieved by the order dated 27-8-2002 passed in i.a .No. 1182 of 2000 in o.s. No.544 of 1975 on the file of ii senior civil judge, hyderabad, the plaintiffs have filed this civil revision petition under Section 115 of the code of civil procedure.

(2.) the petitioners are plaintiffs and the respondents are defendants in o.s. No.544 of 1975. They filed the suit for specific performance of agreement of sale dated 28.1.1974. The defendants filed written statement resisting the claim of the plaintiffs. The suit of the plaintiffs came to be dismissed on 26.12.1978. They preferred an appeal in ccca No.49 of 1979 and the said appeal came to be allowed decreeing the suit of the plaintiffs by judgment dated 9.9.1986. The plaintiffs were required to pay the balance sale consideration of Rs.57,300/- with interest at 6% from 28.8.1974 within two months from the date of judgment and in the event of non-depositing of the amount within the stipulated period the appeal stands dismissed with costs. The defendants unsuccessfully filed lpa.No.239/86. A division bench of this court confirmed the judgment and decree passed in the appeal. The defendants filed slp.No.2486/96 and subsequently withdrew the same on 10.1.1997. The plaintiffs issued a notice dated 10.10.1986 directing the defendants to execute sale deed 1 within ten days from the date of service of the notice as per the judgment dated 9.9.1986 passed in the appeal. Since the defendants failed to execute the registered sale deed in terms of the decree granted in the appeal, the plaintiffs filed e.p. No.81/99 on 24.9.1999. The defendants filed objections in the e.p. the plaintiffs submitted their reply to the objections of the defendants. Latter, the defendants filed la. No. 1182 of 2000 in o.s. No.544 of 1975 for recession of the contract under Section 28(1) of specific relief act (for short act). D1 has given his sworn affidavit in support of the application. It is averred in the affidavit that since the amount was not deposited as per the judgment and decree in the appeal within the stipulated time, the suit of the plaintiffs shall stand dismissed. The plaintiffs filed counter-affidavit resisting the application of the defendants. The plaintiffs took the plea that they deposited the amounts to the credit of the suit through a challan No.434 dated 19.9.1986 in state bank of hyderabad, gunfoundry branch, hyderabad. It is averred in the counter- affidavit that the amount deposited by them has been invested in fixed deposit in canara bank, patthargatti branch, hyderabad.

(3.) on behalf of the defendants, as many as six documents were marked and on behalf of the plaintiffs, as many as 24 documents were marked besides marking confirmation letter from dto as ex.cl. Neither party adduced oral evidence in support of their respective assertions. The learned senior civil judge framed the following points for consideration: (a) whether the respondents/d.hrs have deposited the amount within the stipulated time of two months as per the orders of the Hon'ble High Court of A.P. in ccca No.49/79 dated 9.9.1986? (b) whether the petitioners/defendants are entitled for recession of the contract of agreement of sale dated 28.1.1974? (c) whether the petition is barred by limitation? On considering the material brought on record and on hearing counsel for the parties, the learned senior civil judge recorded a finding that the plaintiffs/decree holders failed to submit the challan in the court for eleven long years and therefore it cannot be said that the plaintiffs/decree holders made deposits within two months as directed by the high court. A further finding has also been recorded that the application filed by the defendants/judgment-debtors for recession of the contract under Section 28(1) of the act is within time. With the above findings, the learned senior civil judge allowed the application filed by the defendants declaring that the contract of agreement dated 28.1.1974 is rescinded, by the order dated 27.8.2002. Assailing the Order, the plaintiffs/decree holders have filed this civil revision petition.