SUNDERLAL Vs. DALIRAM

JUDGEMENT

(1.) BEING aggrieved by the order dated 31-3-2000, passed by Civil Judge, Class I, Waraseoni in Execution Case No. 5-A/81, DHR/applicant has preferred this revision under Section 115, CPC.

(2.) HR/applicant (plaintiff) contacted Sakharam, husband of non-applicant Nos. 2, 3 brother-in-law of non-applicant No. 4 for advance of loan of Rs. 8,000/-, Sakharam had agreed to advance the loan it" the applicant execute two sale deeds of the suit property in favour of the non-applicant Nos. 2 to 4. Accordingly, applicant executed two sale deeds in favour of non-applicant Nos. 2 to 4 for consideration of loan advanced to him. As agreed, Sukharam in his term has executed agreement to resale on repayment of loan amount Rs. 8,000/ -. When applicant tendered the amount, Sukharam and non-applicants refused to execute the reconveyance deed. Therefore, applicant instituted C. S. No. 5-A/81 to enforce the agreement of reconveyance. The suit was decreed by the Civil Judge vide judgment-decree dated 20-4-84. The non-applicants preferred first appeal and thereafter second appeal in the High Court. During the period of these appeals, the execution of decree was stayed under orders of Court. After the dismissal of Second Appeal No. 237/96, the execution proceedings already executed on 6-5-96, non-applicants filed application under Section 28 (1) of the Specific Relief Act, stating inter alia that within one month's time, the amount Rs. 8,000/- has not been paid to him, therefore, the decree of specific performance he rescinded. The application was resisted by the applicant. However, vide impugned order the Court below allowed it and rescinded the decree for specific performance passed in favour of the applicant in C. S. No. 5-A/81.

(3.) C. NO. 5-A/81 was decreed vide judgment dated 20-4-84 and the decree in the suit was drawn to the effect that non-applicants to execute a reconveyance deed within a period of one month's time failing the Court shall do so in favour of the applicant. In this decree, there is no time limit prescribed for depositing Rs. 8,000/- in Court by the applicant. If the non- applicants failed to execute the reconveyance deed, the applicant was entitled to seek a reconveyance in his favour by a deed to be executed by the Court below. It would mean that at the time of execution of reconveyance deed, the applicant was supposed to make payment of Rs. 8,000/ -. On perusal of the execution case, it is clear that it was filed on 6-5-96 and no objection as to non- executability of decree was raised by the non-applicants prior to 17-10-97, the date of filing of application under Section 28 (1) of the Specific Relief Act. During the pendency of appeals, the execution of decree passed by the Court below was stayed. Therefore, there was no reason for the applicant to deposit Rs. 8,000/-immediately.