MANNO Vs. HAZURA SINGH

JUDGEMENT

(1.) This appeal under Clause 10 of the Letters Patent has been brought from the judgment of the learned Single Judge dated May 15, 1975.

(2.) The respondents-decree-holders were granted a decree for specific performance of the contract of sale of the agricultural land against the judgment-debtor on July 30, 1963, which was confirmed by this Court on November 18, 1964. The respondents took out execution of this decree on May 28, 1976, which was opposed by the appellant by way of a petition under Section 47 of the Code of Civil Procedure. The main objections raised in the petition were that the execution application was barred by time; that the decree-holders had previously moved execution applications in the years 1965 and 1968 for recovery of the costs, but did not claim execution of the sale-deed and were, therefore, estopped from claiming the same now and that they had failed to perform their part of the decree and waived their right by getting the land in dispute attached in the year 1968. The trial Court rejected all the objections and dismissed the petition. The appeal filed by the judgment-debtor against the judgment was also dismissed by the learned Single Judge which is under challenge in this appeal.

(3.) The first contention raised by Mr. D.N. Awasthy, the learned counsel for the appellant, was that the decree of the trial Court directed the decree-holders to make that payment. We, however, do not propose to go into this matter as the appeal has to be allowed on the other two contentions raised by the learned counsel. viz., that the respondents has waived their right under the decree and sale agreement and that no offer having been made by them to perform their part of the contract under the decree within a reasonable time, they were not entitled to claim the specific performance of the contract after a lapse of 10 years from the date of the decree of the trial Court. According to the learned counsel, the suit of the respondents had been decreed with costs and to realise those costs they filed execution applications twice-once in the year 1965 and then in the year 1968 and got the land subject-matter of the sale attached. Although they were required to pay Rs. 15,000/- under the decree on account of the remaining sale price, still they chose to realise the costs by attachment and sale of the land in dispute and never offered to deposit the remaining sale price after deducting the costs nor claimed the execution of the sale-deed. This conduct on their part clearly shows that they had no intention to enforce the specific performance of the contract and amounted to waiver of their right under the decree.