KAUSHAL KISHORE SINGH Vs. LAGANDEV SINGH

JUDGEMENT

(1.) The present revision petition has been preferred against an order dated 23.7.2009 passed in Title Suit No. 230/2001 by the Sub-Judge-VII, Bhojpur, Ara. By the said order, he has rejected the petition dated 12.8.2004 filed on behalf of the plaintiff/Petitioner for directing the defendants/Opp. Parties to get the remaining consideration amount and execute sale deed in favour of plaintiff/petitioner. Short fact of the case is that the plaintiff/petitioner had earlier filed a suit for specific performance of contract directing the defendants/Opp. Parties to execute sale deed in his favour in relation to a land measuring an area of 44 decimals, appertaining to R.S. Khata No. 104, R.S. Plot No. 731 situated in Mauja-Bahuara, in the district of Bhojpur. It was claimed by the plaintiff/petitioner that earlier an agreement to sale was executed by defendants/Opp. Parties in favour of the petitioner for transferring the land mentioned hereinabove for a consideration amount of Rs. 1,50,000/-, out of which Rs. 1,40,000/- was paid by the plaintiff/petitioner and rest amount of Rs. 10,000/- was to be paid at the time of execution of sale deed. Since defendants/Opp. Parties were not executing sale deed, the plaintiff/petitioner had filed a suit vide T.S. No. 230 of 2001, which was decreed ex parte on 21.4.2003 by learned Sub-Judge-VII, Bhojpur, Ara in the following terms:--

(2.) The plaintiff/petitioner, thereafter deposited Rs. 10,000/- through challan on 30.6.2003 and filed a petition before the court below on 12.8.2004 for issuance of notice to the defendants/Opp. Parties to get the amount and execute the sale deed. Consequently on 20.8.2005, the learned court below directed for issuance of notice to the defendants along with a copy of order dated 21.4.2003. Defendants/Opp. Parties, thereafter, appeared before the court below and raised objection that the plaintiff/petitioner had not deposited the remaining amount within the time granted by the court. Finally, by the impugned order i.e. order dated 23.7.2009 the petition filed by the plaintiff/petitioner dated 12.8.2004 was dismissed, which has been assailed by way of present revision petition.

(3.) Mr. Abbas Haider, learned counsel for the plaintiff/petitioner has argued that once on petition filed by the plaintiff/petitioner dated 12.8.2004, notices were already directed to issue by order dated 20.8.2005, there was no reason to reject the prayer of the plaintiff/petitioner for directing the defendants/Opp. Parties to execute sale deed. He submits that in terms of order of the court below, remaining amount of Rs. 10,000/- was already deposited through challan and, as such, only requirement of the court below was to direct the defendants/Opp. Parties to execute sale deed in respect of the land in question in favour of the plaintiff/petitioner. He has further argued that the plea, which was taken on behalf of defendants/Opp. Parties that the court below was not authorised to extend the time for depositing the remaining amount, is not sustainable in the eye of law. In support of his argument, learned counsel for the petitioner has relied on a decision of the Hon'ble Apex Court Yesoda & Anr. vs. K. Nagrajan,1996 SCC 228 Ed.--sic--K. Nagrajan vs. Yesoda & Anr., 1996 11 SCC 228. He has argued that in such a situation, it was necessary for the court below to extend the period for depositing the remaining amount. Sri D.K. Sinha, learned Senior Counsel, who was assisted by Sri Abhinay Raj, learned counsel for the defendants/Opp. Parties, has opposed the prayer of the plaintiff/petitioner. It was submitted that the judgment and decree, which was passed ex parte was specific on the point that the defendants/Opp. Parties were required to execute sale deed in favour of the plaintiff/petitioner after receiving the rest amount within 30 days from the date of order, which was passed on 21.4.2003. He submits that it is not in dispute that the remaining amount in terms of judgment/order of the court below was deposited on 30.6.2003 i.e. much beyond the time fixed by the court below and, as such, the prayer made by the plaintiff/petitioner in his petition dated 12.8.2004 for directing the defendants/Opp. Parties to execute sale deed was not sustainable in the eye of law. He further submits that since the plaintiff/petitioner had not deposited the rest amount in terms of judgment and decree of the court below within the time fixed by the court, the suit of the plaintiff/petitioner stood dismissed. In support of his argument on this point, Sri Sinha, learned Senior Counsel has relied on a judgment of the Hon'ble Apex Court ; Sulleh Singh & Ors. vs. Sohan Lal & Anr, 1975 AIR(SC) 1957 He has specifically referred to paragraph Nos. 11 and 13 of the said Judgment. For just decision in the matter, both paragraphs of the said judgment are quoted herein below:--