MANGILAL SONI Vs. SURESH CHANDRA SWARNKAR

JUDGEMENT

(1.) The instant revision petition has been filed against the order dated 17.09.2019 passed by the Additional District Judge No.1, Udaipur in case no. 5/2007 (Suresh Chand v/s Mangilal Soni), whereby the application filed by the petitioner- defendant under Section 28 of the Specific Relief Act, 1963 for rescinding the contract, was rejected.

(2.) Brief facts giving rise to this revision petition are that a suit for specific performance of the contract came to be filed by the respondent-decree holder which was registered as original Suit No.26/85 and the same was decreed by the trial Court vide its judgment and decree dated 03.04.1987 with a direction to the respondent-decree holder to make payment of remaining amount to petitioner-defendant of Rs.50,000/- within two months, whereupon the petitioner-defendant shall execute the sale deed in favour of respondent-plaintiff. On failure of defendant to do so, the plaintiff would deposit the amount in the Court of ADJ, Udaipur and get the sale deed executed through the Court. Being aggrieved against the judgment and decree dated 03.04.1987, the petitioner-defendant preferred an appeal before this Court bearing S.B. Civil First Appeal No. 42/1987, wherein initially an interim order was passed by this Court but subsequently, the said first appeal came to be dismissed on 12.02.2007.

(3.) The respondent-plaintiff, thereafter, filed an application under Order 21 Rule 34 and 32 read with Section 151 CPC before the trial Court on 02.07.2007 seeking execution of the sale deed and mentioning therein that the remaining sale amount of Rs.50,000/- is being deposited through the challan, therefore, necessary permission may be granted to deposit the said amount. The trial Court on 03.07.2007, ordered for depositing of the sale amount of Rs.50,000/-. Thereafter, on 04.07.2007, the sale amount of Rs.50,000/- was deposited by the respondent-plaintiff in the Court. On 22.11.2008, the petitioner-defendant filed reply to the application preferred by the respondent-plaintiff under Order 21 Rule 34 CPC denying the averments made in the said application. It was further averred that the remaining sale amount was not deposited by the respondent-plaintiff as per the direction given by the trial Court vide judgment and decree dated 03.04.1987. Thus, the respondent-plaintiff is not entitled to deposit the said amount. Even, if, the said amount has been deposited in the Court, the same is not in pursuance of the direction given by the trial Court vide its decree dated 03.04.1987. Hence, the respondent-plaintiff is not entitled to get the decree executed and prayer was made to dismiss the application under Order 21 Rule 34 CPC.