SUCHA SINGH Vs. NAND LAL

JUDGEMENT

(1.) The petitioner-judgment debtor has filed the present petition impugning the order dated 27.3.2015, passed by the learned executing court, dismissing the application filed by the petitioner under Section 28 of the Specific Relief Act, 1963 (for short, 'the Act').

(2.) Briefly, the facts are that the petitioner entered into an agreement to sell with the respondent on 28.12.2006 for sale of the land, measuring 14 kanals 4 marlas, @ Rs. 8,00,000/- per killa. The last date for execution of the sale deed was fixed as 8.5.2007. After execution of the agreement to sell, on different occasions, the petitioner received part payments from the respondent and total amount received before the registration of the sale deed was Rs. 4,20,000/-. The petitioner having failed to get the sale deed registered, the respondent filed a suit for possession by way of specific performance of agreement to sell on 15.6.2007. The same was decreed by the trial court vide judgment dated 22.7.2011. It was directed that the petitioner will execute the sale deed and deliver possession to him within a period of 2 months after receiving the balance sale consideration, failing which the respondent-plaintiff could get the sale deed executed and take possession of the suit land by filing execution. The petitioner, being aggrieved against the judgment and decree of the trial court, filed appeal, which was dismissed by the learned lower appellate court vide judgment and decree dated 14.1.2012. The judgment and decree of the learned lower appellate court was challenged by the petitioner by filing RSA No. 2364 of 2012, which was dismissed by this court vide order dated 27.10.2014. On 16.4.2012, the respondent filed application seeking permission to deposit the balance sale consideration, which was permitted and the amount was deposited on the same date. Thereafter, he filed application under Order 21 Rule 32 CPC for implementing the judgment and decree. In the aforesaid application, the petitioner filed application under Section 28 (1) of the Act for rescinding the contract because the decree-holder failed to deposit the balance sale consideration within the period granted and further failed to seek extension thereof. The same was dismissed by the court below vide impugned order.

(3.) Learned counsel for the petitioner submitted that in the judgment and decree passed by the trial court on 22.7.2011, two months' time was granted for deposit of the balance sale consideration, however, the same was deposited by the respondent-decree holder on 16.4.2012 without there being any application seeking extension of time. In the absence thereof, in terms of the provisions of Section 28 (1) of the Act, the contract was liable to be rescinded and the decree had become unexecutable. The court below was wrong in observing that there was no time fixed by the court for deposit of the amount. However, he did not dispute the fact that during the pendency of appeal before the first appellate court, there was interim stay.