IBRAHIM SHARIFF Vs. MASTHAN SHARIFF

JUDGEMENT

(1.) One Ibrahim Sheriff, the petitioner and the appellant before me> and his brother Mastan Sheriff jointly purchased a house on 11th July, 1940. But they found that they could not conveniently enjoy the house jointly. So they entered into an agreement in counter-part on 26th October, 1952, under which Ibrahim Sheriff was to purchase the half share of Mastan Sheriff on payment of a particular amount within a specified time. In default option was given to Mastan Sheriff to pay the amount to Ibrahim Sheriff and get a sale deed with respect to the latter's half share in the house. It appears that Ibrahim Sheriff did not pay the amount in time. Therefore, Mastan Sheriff filed O.S. No. 79 of 1953 in the District Munsif's Court, Guntur for specific performance of the agreement of sale by direct- ing Ibrahim Sheriff to execute the sale deed with respect to his half share in the house on Mastan Sheriff paying the purchase price. That suit was dismissed by the District Munsif's Court, Guntur. But Masthan Shariff filed an appeal, .A.S. No. 179 of 1953 in the Court of the Subordinate Judge, Guntur. It was allowed and a decree was passed by that Court in the following terms;

(2.) This decree is dated 29th November, 1954. Ibrahim Sheriff filed S.A. No. 328 of 1955 in the High Court of Andhra which was dismissed by the High Court of Andhra Pradesh on 22nd October, 1957. Mastan Shariff, the decree-holder, filed I.A. No. 1000 of 1958 for ascertainment of mesne profits but that was dismissed with costs after contest. It may be mentioned that till then the decreeholder did not deposit the amount of Rs. 2,250 as per the decree of the first appellate Court within one month from the date of that decree. I.A. No. 1000 of 1958 appears to have been dismissed on the objection of Ibrahim Sheriff that the decreeholder did not deposit the amount of Rs. 2,250 within one month as per the decree of the appellate Court and did not obtain a sale deed in his favour as per the terms of that decree. It may also be mentioned that I.A. No. 1000 of 1958 for ascertainment of mesne profits and for passing a decree therefor was dismissed on 6th November, 1958, and that order had become final. Still, the decree holder did not apply for extension of the time granted by the appellate Court in the decree i.e., one month from 29th November, 1954, and did not deposit the amount of Rs. 2,250 to enable him to get a sale deed executed with respect to the half share in the house belonging to Ibrahim Sheriff.

(3.) The decree-holder next filed E.P. No. 629 of 1960 under Order 21, rules 34, 43 and 66, Civil Procedure Code, for execution of the registered sale deed by the judgment-debtor and for attachment and sale of moveables and for recovery of the costs. The said E.P. was filed on 5th April, 1960. But the judgment-debtor in his turn, filed I.A. No. 1419 of 1960 under section 35 of the Specific Relief Act and section 151, Civil Procedure Code, to rescind the contract of sale dated 26th October, 1952, and to cancel, supersede or revoke, the decree and declare it as invalid and inexecutable. It was alleged in that I.A. that as the decreeholder did not deposit the amount in Court as per the first appellate Court's decree, he is not entitled to have the same decree executed and so the contract dated 26th October, 1952, should be rescinded and the decree in O.S. No. 79 of 1953 should be declared as invalid and inexecutable. It was only thereafter on 2nd July, 1960, that the decree holder deposited the amount of Rs. 2,250 directed by the appellate Court in A.S. No. 179 of 1953 on the file of the Subordinate Judge's Court, Guntur and also filed I.A. No. 1710 of 1960 under section 151 and section 5 of the Limitation Act to condone the delay, if any in depositing the amount. It is clear from these facts that the decreeholder deposited the amount about five and a half years after the date of the appellate decree in spite of the fact that his earlier application I.A. No. 1000 of 1958 for ascertainment of mesne profits was dismissed even on 6th November, 1958, on the ground that the decreeholder did not deposit the amount within the time fixed by the appellate Court decreeing specific performance and did not obtain a sale deed as provided thereunder. What is more, the decreeholder did not deposit the amount or apply for extension of the time for depositing the amount even when he filed E.P. No. 629 of 1960 on 5th April, 1960, for execution of the decree for specific performance nearly one and a half years of the dismissal of I.A. No. 1000 of 1958. He deposited the amount only about a month after the judgment debtor filed I.A. No. 1419 of 1960 under section 35 of the Specific Relief Act to rescind the contract of sale dated 26th October, 1952, and to revoke the decree for specific performance. The lower Court allowed E.A. No. 1710 of 1960 and condoned the delay in depositing the amount of Rs. 2,250 and dismissed the judgment-debtor's application I.A. No. 1419 of 1960 to rescind the contract and to revoke the decree for specific performance. It over-ruled all the objections of the judgment-debtor to E.P. No. 629 of 1960 and posted the execution petition to 28th October, 1960, to enable the decree-holder to deposit the non-judicial stamps on which the sale deed has to be engrossed. Against the order in E.P. No. 629 of 1960, an appeal was filed by the judgment-debtor (A.S. No. 32 of 1961) in the Subordinate Judge's Court, Guntur. Against the order in I.A. No. 1419 of 1960, the judgment-debtor filed C.R.P. No. 1004 of 1961 in the High Court. By order dated 8th March, 1963, passed by this High Court in C.M.P. No. 7929 of 1961 A.S. No. 32 of 1961 on the file of the Subordinate Judge's Court, Guntur is transferred to the file of this Court to be heard along with C.R.P. No. 1004 of 1961 and numbered as C.M.A. No. 467 of 1963. Hence they are posted together before us for hearing.