PARKASHWINDER SINGH Vs. JASWANT SINGH

JUDGEMENT

(1.) The present revision petition is directed against the impugned order dtd. 30/9/2016, whereby the application for restoration of the application for extension of time, dismissed in default on 12/10/2012 and execution application dtd. 11/8/2012 seeking execution of the decree dtd. 10/2/2012, have been dismissed.

(2.) The question involved in the present revision petition is whether the petitioner-decree holder had been ready and willing to perform the part of the agreement to sell in not depositing the balance amount within a period of two months from the date of judgment and decree dtd. 10/2/2012, in a suit for specific performance.

(3.) Ms. Puja Chopra, learned counsel appearing on behalf of the petitioner submitted that the two months' time expired on 10/4/2012, however, an application dtd. 7/4/2012 (Annexure P-2), seeking indulgence of the Court, for depositing the balance consideration, was submitted, as the health of the wife of petitioner was not good. The respondent filed the reply dtd. 18/5/2012. However, on 24/7/2012, two more applications were filed, one for execution and another for allowing the petitioner to deposit the balance consideration. The zimini orders reveal that both the applications dtd. 24/7/2012, were kept pending, however, application dtd. 7/4/2012 under Sec. 148 of CPC, was dismissed in default on 12/10/2012. An application for restoration dtd. 17/5/2016 (Annexure P-6), was filed, which has been dismissed. There was no willful default on behalf of the petitioner. The reasons were beyond control. In fact, the petitioner was following the case in diligent manner and represented by the counsel, but could not come to know about the dismissal in default of the application seeking extension of time. After engagement of new counsel, he was under impression that the execution application and application for extension of time were pending together. Judgment debtor suffered a statement qua withdrawal of the transfer application pending before the District Judge. An application for extension of time was bona fide intention to deposit the balance sale consideration. The petitioner had been acting as per the advice of the counsel and is under impression that all the applications were pending. The time can always be extended. In support of his contentions, he relied upon the ratio decidendi culled out by the Hon'ble Supreme Court in "Sardar Mohar Singh through Power of Attorney Holder V/s Mamilal (a) Mawtva""( 1997) 2 RCR (Civil) 296 and as well as by this Court in "Mohinder Singh V/s Satpal Singh" (2010) 42 RCR (Civil) 867.