MOST. PARWATI DEVI Vs. MAHABIR MAHTO

JUDGEMENT

(1.) Aggrieved by orders dated 08.01.2010 and 19.07.2010 in Execution Case No. 6 of 2006, the present writ petition has been filed. The plaintiff who is respondent in the writ petition filed Title Suit No. 91 of 1977, seeking a decree of specific performance of agreement dated 24.05.1968, which was decreed on 25.11.1978. The plaintiff was directed to deposit Rs.1,500.00 within 30 days and the defendant was directed to execute sale-deed, within 60 days from the date of judgment. It is stated that the plaintiff did not deposit the amount of Rs.1500.00 within 30 days in terms of judgment and order dated 25.11.1978 and therefore, application dated 01.01.1979 was filed by the plaintiff seeking extension of time for depositing Rs.1500.00 however, the said application was dismissed on the same day, declining extension of time for depositing the said amount. The defendant who is petitioner herein preferred Title Appeal No. 10 of 1979 challenging judgment dated 25.11.1978 which was dismissed however, the second appeal preferred by the defendant being, S.A. No. 74 of 1984 was allowed by this Court vide order dated 11.05.1999 and thus, Title Suit No. 91 of 1977 stood dismissed. Challenging the order passed in second appeal, the plaintiff approached the Honourable Supreme Court by filing Special Leave Petition which was converted into Civil Appeal No. 1514 of 2000. The Civil Appeal preferred by the plaintiff was allowed on 11.01.2006 and thus, the orders passed in Title Suit No. 91 of 1977 and Title Appeal No. 10 of 1979 were restored. Thereafter, the plaintiff filed Execution Case No. 6 of 2006 in which an enquiry was made as to deposit of Rs.1500.00 on 09.12.1978, as claimed by the plaintiff and a report was received from the Treasury which indicates that no such deposit was made on 19.12.1978. However, vide letter dated 08.01.2010, the trial court ordered the plaintiff to deposit a sum of Rs.1500.00 and vide order dated 19.07.2010 the plaintiff was directed to submit proforma of sale-deed.

(2.) Mr. Rajeev Ranjan Tiwary, the learned counsel appearing for the petitioner submits that, admittedly, in compliance of order in T.S. No. 91/1977 the plaintiff did not deposit Rs.1500.00 within 30 days and he filed application dated 01.01.1979 seeking extension of time for depositing the said amount however, the prayer of the plaintiff was declined by the trial court and thus, in term of the decree in T.S. No. 91/1977 which enjoins the plaintiff to deposit a sum of Rs.1500.00 within 30 days, the plaintiff did not comply the said order. Therefore, the defendant was not obliged to execute the sale-deed. In such view of the matter, the decree which is in two parts cannot be executed due to nonperformance of his part by the plaintiff still, the trial court permitted the plaintiff to deposit a sum of Rs.1500.00 which would amount to modifying the decree. It is submitted that order dated 01.01.1979 refusing extension of time was not challenged by the plaintiff and thus, the said order could not have been reviewed by the trial court by permitting the plaintiff to deposit a sum of Rs.1500.00. It is further submitted that before the Honourable Supreme Court a plea was taken by the plaintiff that he deposited a sum of Rs.1500.00 on 19.12.1978 however, the proceeding in Execution Case No. 6 of 2006 clearly discloses that no such amount was deposited in the Treasury and thus, fraud was played upon the court by the plaintiff. The learned counsel for the petitioner relies on a decision of the Honourable Supreme Court in " Meghmala and others Vs. G. Narasimha Reddy and others", reported in (2010) 8 SCC 383 to contend that an order obtained by playing fraud upon the court is liable to be interfered by the Court.

(3.) As against the above, the learned counsel for the respondent submits that, before the Honourable Supreme Court, a copy of challan dated 19.12.1978 was filed as Annexure-5 to the Special Leave Petition. The defendant-plaintiff appeared and filed counter-affidavit and, the Honourable Supreme Court after considering the materials on record, interfered with order passed in S.A. No. 23 of 1994 and therefore, the plea raised by the petitioner that an amount of Rs.1500.00 was not deposited by the petitioner, is unfounded. Moreover, the Honourable Supreme Court has noticed that no such plea was raised by the judgment-debtor before the Appellate Court and thus, the petitioner cannot raise a plea of fraud at this stage.