DILIP KUMAR PATRO Vs. M. GOPIKRISHNA RAO

JUDGEMENT

(1.) This Writ Petition has been filed by the petitioner challenging the order dated 26-6-2006 passed by the learned Civil Judge (Senior Division), Berhampur in T.S. No. 128 of 1997 rejecting the application under Section 28 (1) of the Specific Relief Act, 1963 for rescission of the contract dated 21-8-1995 as the opposite party did not comply with the judgment and decree passed by the court below and committed default in depositing the balance consideration within the stipulated time.

(2.) The facts leading to the present case are that there was an agreement between the petitioner and opposite party on 21-8-1995 wherein the petitioner was agreed to sell the disputed property measuring Ac. 0.44 cents for Rs. 2,17,844/- to the opposite party and to execute the Sale Deed within a period of seventeen months from the date of agreement. Accordingly, the opposite party paid a sum of Rs. 35,001/- to the petitioner towards advance consideration. As the petitioner did not excute the Sale Deed, the opposite party as plaintiff filed T.S No. 128 of 1997 before the learned Civil Judge (Senior Division), Berhampur for specific performance of contract. The petitioner who is defendant appeared in the suit and filed his written statement stating that he is ready and willing to perform his contract and the opposite party be directed to deposit the entire balance consideration amount with interest in court.

(3.) The court below taking into consideration the materials available on record and the evidence adduced by the parties decreed the suit on 7-4-2001 directing the petitioner to execute the Sale Deed in favour of the opposite party within one month of the decree and the opposite party to pay the balance consideration amount of the agreed value within the said period failing which the opposite party would be at liberty to get the Sale Deed executed and registered through courts. The petitioner did not execute the Sale Deed as per the decree, however, he has given a false notice to the opposite party stating that on 28-5-2001 he will execute the Sale Deed. On receiving the notice the opposite party had been to the office of Sub-Registar along with the balance consideration money. However, the petitioner expressed his inability to execute the Sale Deed for the whole lands on the plea that he had already sold 8800 sq. ft. out of the schedule property to somebody else. The opposite party in order to show his bona fide deposited the entire balance consideration amount in Bank. Thereafter the petitioner filed an application befoe the court below under Order 47, Rule 1 of C.P.C. to modify the judgment and decree on the ground that the extent of land as agreed was not as per schedule and the extent to be reduced. The said application was registered as M.J.C. No. 91 of 2001. The opposite party filed his objection to the said application stating that in order to delay the proceeding the application has been filed. The opposite party also filed Execution Case No. 38 of 2001 to get the decree executed. The petitioner filed an application under S. 47 of C.P.C. questioning the executability of the decree. Thereafter the petitioner filed an application under Section 28 (1) of the Specific Relief Act, 1963 (hereinafter referred to as " the Act" ) to rescind the contract. The court below after hearing the parties came to the conclusion that there are no reasons to hold the decree ineffective merely because the amount was not deposited within the stipulated period. The court is competent under Section 28 of the Act to grant extension of time to deposit the purchased price even if the period fixed by the court has been expired and without any application for extension. Section 48 of C.P.C. also empowers the court to extend the time even if the period has already been expried. Accordingly, the court below by the impugned order rejected the application and directed the opposite party to deposit the balance amount within a period of one month from the date of the order and the petitioner is to execute the Sale Deed in view of the judgment and decree passed in the suit.