MOST GANESH DEVI Vs. INTAF ANSARI

JUDGEMENT

(1.) THIS Civil Revision application is directed against the order dated 13.7.1998 passed by the 2nd Munsif, Sasaram, in Execution Case No. 4 of 1995, whereby he has directed the parties to adduce evidence if any on the readiness and willingness of the Decree -hoder to pay the balance consideration in terms of the decree.

(2.) THE facts of the case lie in narrow compass. The plaintiffs -petitioners who are Decree -holders filed Title Suit No. 256 of 1960 in the court of the Munsif, Sasaram, for a decree for specific performance of contract for sale in respect of the suit property on the basis of the agreement executed by the defendants -Opposite parties to sell the disputed land for a sum of Rs. 2500/ -, out of which a sum of Rs. 1000/ - was paid in advance and balance amount of Rs. 1500/ - was agreed to be paid at the time of execution of the sale deed. The suit was dismissed by the trial court in terms of the judgment and decree dated 30.7.1977 holding that the plaintiffs are not entitled to get a decree for specific performance of contract. However, decree for refund of the earnest money by the defendants to the plaintiff was passed. Aggrieved by the said judgment and decree the petitioners filed Title Appeal No. 40 of 1977 in the court of the District Judge, Sasaram. The said appeal was eventually transferred to the court of the Additional District Judge who after hearing the parties,in terms of the judgment and decree dated 1.9.1982 allowed the appeal and reversed the judgment and decree of the trial court. The suit was decreed and the defendants were directed to execute a sale deed in favour of the plaintiffs -petitioners within three months from the date of the decree. The defendants -Opposite parties moved this Court by filing second appeal being S.A.No. 443 of 1982 and this Court after hearing the parties dismissed the aforesaid Second appeal in terms of the judgment and decree dated 31.7.1992. The defendants -Opposite parties moved the Supreme Court in SLP (Civil) No. 16146 of 1993 which too was dismissed at the stage of admission in terms of the order dated 19.11.1993. The petitioners ' case is that after judgment and decree was affirmed by the High Court in Second Appeal No. 443 of 1982, an application was filed before the trial court on 30.4.1993 for permission to deposit the rest of the amount of Rs. 1500/ - by way of Chalan in the Court. That application remained pending for quite a long time and again on 19.11.1194 the petitioners filed another application for an order for deposit of the amount by way of chalan. The trial court ultimately by order dated 6.4.1996 allowed the application and directed the office to check and issue chalan. Accordingly, the money was deposited on 10.4.1996. In the meantime the D.Hrs -petitioners filed Execution Case No. 4 of 1995 for execution of the decree' and prayed for a direction to the Judgment -debtors -Opposite parties to execute a registered sale deed in terms of the decree. In the said execution case the Judgment -debtors -Opposite parties filed objection under Section 47 of the Code of Civil Procedure stating, inter alia, that since the balance amount of Rs. 1500/ -was not deposited by the Decree -holders -petitioners within three months as stipulated in the decree, the decree become inexecutable. The Executing court after hearing the parties allowed the objection of the Judgment -debtors and dismissed the execution case holding that the" decree became inexecutable. Against the aforesaid order dated 22.8.1'997 passed by the Executing court the petitioners moved this Court in Civil Revision No. 1557 of 1997. The said revision application was placed before me and after hearing the parties I allow the revision application and set aside the order of the Executing court. In the said order I have categorically held that the Executing court has committed serious illegality in dimissing the execution case on the bare statement of the Judgment -debtors that the balance amount of money was not tendered within the time fixed by the decree. The executing court was, therefore, directed to pass a fresh order after considering the evidence that may be produced by the parties. It appears that after the matter was remitted back to the executing court the impugned order was passed whereby the parties have been directed to adduce evidence on the readiness and willingness of the Decree -holders. The operative portion of the impugned order is quoted herein below: - ''Hence it is hereby ordered that the parties may adduce evidence if any on the readiness and willingness of the Decree -holders to pay the balance consideration amount since the date of decree till the date of actual payment. ''

(3.) FROM perusal of the record it appears that the suit was instituted in the year 1977 and the decree for specific performance of contract was passed by the appellate court in the year 1982 and the litigation is going on for the last 22 years. I, therefore with consent of the parties dispose of this application not only deciding the propriety of the impugned order but also the objection raised by the Judgment -debtors -Opposite parties under Section 47 of the Code of Civil Procedure.