SUBHASH CHAND Vs. OM PARKASH AND ORS.

JUDGEMENT

(1.) A suit for possession by way of specific performance of agreement to sell dated 22.09.1999 was filed by the petitioner by impleading respondent No. 2 -Anandpal, the co -vendee as pro forma party. The agreement to sell was executed by defendant/respondent No. 1 -Om Parkash (deceased) agreeing to sell 6 kanals 6 marlas of the land being 1/30th share out of total land measuring 188 kanals 9 marlas of the land. The total amount of sale consideration was Rs. 1,45,000/ - out of which Rs. 60,000/ - was paid on 22.09.1999 and another amount of Rs. 50,000/ - on 30.04.2000 when the period of execution of sale deed was extended up to 15.05.2000. Therefore, respondent No. 1 -judgment debtor (JD) had received an amount of Rs. 1,10,000/ - in all out of Rs. 1,45,000/ -. The execution of agreement to sell was admitted but the only issue framed in the case was whether the petitioner and pro forma respondent No. 2 were ready and willing to perform their part of contract. In the instant petition, the petitioner/decree -holder (DH) has invoked revisional jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside the order dated 05.05.2012 (Annexure P -5) whereby prayer of the petitioner made in his application dated 12.09.2011 (Annexure P -4) for extension of time for depositing the balance amount of Rs. 35,000/ - was declined.

(2.) THE facts relevant for disposal of instant petition are that the suit for specific performance of agreement to sell was instituted on 15.06.2000 and decree in favour of petitioner and the pro forma respondent No. 2 was passed on 09.06.2008 i.e. after about 8 years of the institution. Appeal against the judgment of trial Court was instituted on 30.07.2008 which was dismissed on 30.08.2010. The judgments of trial Court and Appellate Court are Annexures P -1 and P -3, respectively. The decree passed by the trial Court was to the effect that defendant -respondent No. 1 was directed to execute the sale deed and deliver the possession within a period of two months from the date of decision failing which the decree -holder could seek assistance of the Court. It was further held that in case, defendant -respondent No. 1 failed to execute the sale deed, the decree -holder shall deposit the balance sale consideration within a period of two months after expiry of period granted to the defendant to execute the sale deed. In a nutshell, the total time granted to execute the sale deed was four months from the date of judgment and decree of the trial Court i.e. 09.06.2008. It is borne out from the impugned order dated 05.05.2012 (Annexure P -5) that the execution petition was filed before the Executing Court on 20.01.2011 i.e. after about five months of the passing of judgment by the Appellate Court. The application for extension of time for depositing the balance sale consideration of Rs. 35,000/ - is dated 12.09.2011 (Annexure P -4).

(3.) I have heard learned counsel for the petitioner, learned counsel for respondent No. 1 and have gone through the entire paper -book quite carefully and find that the learned lower Court has failed to properly exercise its discretion which has resulted in failure of justice and the impugned order deserves to be quashed.