BALBIR SINGH AND ANOTHER Vs. AMOLAK RAM

JUDGEMENT

(1.) The revision is against the order dismissing an application filed under Section 28 of the Specific Relief Act by the judgment debtor on a plea that the decree holder had not complied with the terms of the decree as regards the deposit to be made for obtaining the sale deed and the decree is therefore required to be rescinded. In the averments in objection to the execution petition filed by decree holder, the judgment debtor also reiterated the stand taken in the application. The Executing Court rejected the objection and also dismissed the application and ordered further process in execution. It is this order against which the civil revision has been filed by the judgment debtor.

(2.) In the suit filed for specific performance of agreement of sale admittedly executed by the judgment debtor, the contest was taken by the defendant-judgment debtor to the effect that he was always ready and willing to perform his part of the contract but only the plaintiff was not willing. The Court still found favour with the plaintiff and had granted a decree on 26.02.2011. The decree directed the defendant-judgment debtor to execute the sale deed on receipt of balance of sale consideration of Rs. 40 lakhs within two months and the application for deposit had been made on 13.08.2012, and after depositing the money on 14.08.2012, he had sought for execution of the sale deed pursuant to the decree. On the objection filed by the judgment debtor and in response to the application filed by him for rescission of the decree, the decree holder had a justification that he could not have a sale deed obtained from the judgment debtor in view of a suit that had been filed by one Daljit Singh not merely against the judgment debtor but against him, as well, for an injunction on the basis of an alleged agreement executed on 09.12.2005, that is, a date anterior to the agreement which was the subject of the suit for specific performance. The judgment debtor took a defence that the agreement sued upon by Dalbir Singh was a fabricated document and the said suit had been dismissed on 19.07.2012. Significantly, it was not a plea of the judgment debtor that there had been any act of collusion of the decree holder in setting up Dalbir Singh to file a suit. During the pendency of suit, there had been admittedly an order of injunction restraining the judgment debtor, who was the defendant to the said suit from alienating the property. Since the decree holder was a party, he knew about a claim to the same property at the instance of yet another person and a subsistence of an order of injunction that had been issued against the judgment debtor in the said suit. The decree holder's contention was that he moved an application for deposit on 13.08.2012, that is, immediately within a month from the date when the decree was passed on 19.07.2012 dismissing the suit filed by Dalbir Singh and vacating the order of injunction. The contention, therefore, was that there had been no lapse on his part and he could not have secured a sale deed within time prescribed by the Court under the decree under an extraordinary circumstances of an order of injunction issued in another case.

(3.) The learned counsel for the judgment debtor-petitioner would contend that when there was a direction for payment of sale consideration within two months, it was irrelevant that there was any order of injunction in the suit filed by Dalbir Singh. The deposit ought to have been an independent obligation for the decree holder to have conformed to and he could not have an excuse for not complying with the terms of the decree. The counsel would rely on a judgment of this Court in Chanda Versus Rattni, 1999 123 PunLR 135 where in a similar situation containing similar directions in the decree that the defendants (vendors) shall execute the sale deed on payment of balance of sale price and get it registered within a period of two months and when the decree holder did not make a deposit and obtain a sale deed, an application had been filed for rescission of the decree and that application had been allowed. The Court observed that the defendant/vendor had the right to ask the Court to rescind the decree containing a direction to sell because of default committed by the plaintiff. This judgment was a subject of appeal to the Supreme Court that was disposed of under the same cause titleChanda (dead) through LRs Versus Rattni and another, 2007 AIR(SC) 1514 which held that if the vendee was not paying the amount within time, the application by a vendor to rescind the contract was justified and the Court was not in error in allowing for such an application. According to the counsel, this decision of the Supreme Court confirming the judgment of this Court in Chanda squarely answers the situation that arises in this case.