IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 412 of 2010()
1. JOY,S/O.KUNJACHAN,KODUMANNETHU HOUSE,
... Petitioner
Vs
1. K.A.VARGHESE,
... Respondent
For Petitioner :SRI.PHILIP M.VARUGHESE
For Respondent :SRI.K.GOPALAKRISHNA KURUP (SR.)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :09/11/2010
O R D E R
THOMAS P JOSEPH, J.
----------------------------------------
O.P(C).No.457 of 2010
and
C.R.P.No.412 of 2010
---------------------------------------
Dated this 09th day of November, 2010
ORDER
This revision under Section 115 of the Code of Civil
Procedure (for short, “the Code”) and petition under Article 227
of the Constitution arise from the same subject matter,
enforcement of a decree for execution of a sale deed pursuant to
an agreement for sale executed by petitioner in favour of
respondent. Respondent alleged that in spite of his being ready
and willing to perform his part of the contract petitioner failed to
perform his part and filed O.S.No.100 of 2001 in the court of
learned Sub Judge, Pathanamthitta for a decree for specific
performance. That suit resulted in a decree on December 14,
2005 as per which petitioner was directed to execute the sale
deed after receiving `.4,47,500/- within a period of three months
from the date of decree and in case petitioner failed to do so
permitting respondent to realise balance sale consideration and
get the sale deed executed. Period of three months expired on
13-02-2006 but, petitioner did not take any steps to comply with
O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010
: 2 :
the direction in the decree. On July 21, 2006 respondent filed
E.P.No.104 of 2006 to direct petitioner to execute the sale deed
in favour of a nominee of his. The balance sale consideration as
per the decree was deposited in the trial court on March 6, 2007.
Execution petition was objected by petitioner on various grounds.
Petitioner filed I.A.No.194 of 2008 on the trial side of the same
court to rescind the contract under Sec.28 of the Specific Relief
Act (for short, “the Act”). That application was opposed by the
respondent. Learned Sub Judge dismissed I.A.No.194 of 2008
which is under challenge in C.R.P.No.412 of 2010. In the light of
objection raised by petitioner to the execution petition on the
ground that decree directs sale of property to the respondent and
hence sale deed could not be executed in favour of his nominee,
respondent filed application in the execution court for
amendment of the execution petition to the extent that sale deed
is to be executed in favour of respondent. That application was
allowed by the learned Sub Judge which is under challenge at the
instance of petitioner/judgment debtor in O.P(C).No.457 of 2010.
Following contentions are raised before me.
(i) Decree is one for mandatory
injunction. Executing court was not correct in
allowing amendment of the execution petition
O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010
: 3 :
after three years of the decree (December 14,
2005).
(ii) Executing court was not justified in
allowing the respondent to proceed with
execution petition filed on 21-07-2006 without
respondent seeking extension of time for
deposit of the amount on the trial side.
(iii) Learned Sub Judge was not correct
in dismissing I.A.No.194 of 2008 and at any rate
without going into the question whether it was
just and equitable to permit respondent get the
sale deed executed.
2. It is contended by learned counsel for
petitioner/judgment debtor that in so far as decree is one for
mandatory injunction, period of limitation for its execution is
three years from the date of decree as provided under Article 135
of the Limitation Act and hence the application for amendment
filed after three years of the decree to execute the sale deed in
favour of respondent could not have been entertained. I stated
that the purport of amendment was to correct the prayer in the
execution petition to the effect that sale deed be executed in the
name of respondent instead of his nominee (as originally prayed
for).
3. Contention that decree is for mandatory injunction
cannot be accepted. True, the decree directs petitioner by an
O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010
: 4 :
order of mandatory injunction to execute the sale deed. The copy
of decree states that the suit was for specific performance. It
leaves me in no doubt that in whatever manner relief has been
worded by the learned Sub Judge, it continued to be a suit for
specific performance. Court fee is also paid for specific
performance. Hence the contention that decree is for mandatory
injunction cannot be accepted. Even otherwise assuming that the
suit is for mandatory injunction still the argument advanced by
learned counsel cannot be accepted since the execution petition
was filed on 21-07-2006, certainly from three years of the decree
in compliance of Article 135 of the Limitation Act. What is done
by respondent after three years of the date of decree is only to
seek amendment of the execution petition to the effect that the
sale deed be executed not in the name of his nominee as
originally prayed in the execution petition but in the name of
respondent himself. That cannot be treated as an execution
petition attracting period of limitation under Article 135 of the
Limitation Act.
4. Next contention is that in so far as respondent has not
deposited sale consideration within three months from the date of
decree (December 14, 2005) it required extension of time on the
part of respondent for deposit of the amount. It is pointed out by
O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010
: 5 :
learned counsel that executing court could not have extended
time even if it was requested for. It is also contended that
learned Sub Judge was not correct in dismissing I.A.No.194 of
2008 without considering whether it was just and equitable to
permit the respondent to get sale deed executed. Reliance is
placed on the decisions in Narayanan Nair Raman Nair Vs.
Govindan Nair Raman Nair (AIR 1952 Travancore-Cochin
440), Ramankutty Guptan Vs. Avara (1992(2) KLT 608) and
Anandavally Vs. Nadesan (1992(2) KLT 833). Per contra it is
contended by learned Senior Advocate appearing for respondent
that the decree did not specify that respondent had to deposit the
amount within any particular time and hence it could not be said
that there was non compliance of the decree by the respondent
so that respondent was required to move under Sec.28 of the Act
for extension of time. At any rate in the absence of any evidence
of positive default on the part of respondent to comply with the
decree, executing court was justified in allowing respondent to
proceed with execution of the decree and the trial court in
dismissing I.A.No.194 of 2008.
5. No doubt, as held by this court in Anandavally Vs.
Nadesan (supra) in a suit for specific performance plaintiff has
to show that he was always ready and willing to perform his part
O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010
: 6 :
of the contract and that must extent up to the time of execution
of the sale deed. If the decree directs decree holder to perform
his duty within a time stipulated certainly it is required to be so
done and if not, he may have to seek extension of time under
Sec.28 of the Act as held in Narayanan Nair Raman Nair Vs.
Govindan Nair Raman Nair (supra). The power for extension
of time under Sec.28 of the Code is not vested with the executing
court but with the trial court. The decree does not cast any
liability on respondent to deposit balance sale consideration
within any particular time though Order XX Rule 12A of the code
of Civil Procedure required the court to specify time for deposit
of the amount. Unfortunately the decree does not say so. It
cannot therefore be said that there was any failure on the part of
respondent to deposit the amount within the stipulated time and
the court was bound to rescind the contract under Sec.28 of the
Act though, it does not mean that respondent could have slept
over the matter for any length of time and asked for extension of
time for deposit of the amount. Two decisions supports the
argument of learned Senior Advocate for respondent – Iiyas son
of Faizi & Ors. Vs. IIIrd Addl. Dist. Judge, Meerut & Anr.
(2006(3) ALJ 312)and Venkatakrishna Reddy Vs. M.
Anjappa (AIR 2009 Andhra Pradesh 179). The decree does
O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010
: 7 :
not direct respondent to deposit the amount within any specified
time and hence it could not be said that there was any positive
refusal on the part of respondent to comply with the decree
which enabled petitioner to get rescission of the contract.
6. As per the decree, time provided to the petitioner to
receive the balance sale consideration and execute the sale deed
expired on 13-03-2006. There is no case or evidence that in the
meantime petitioner had done anything on his part. Instead, he
remained idle. Respondent on his part, filed E.P.No.104 of 2006
on 21-07-2006 ie, after four months of expiry of the time given to
the petitioner as per the decree. Petitioner chose to file
I.A.No.194 of 2008 only in the year, 2008 after respondent filed
execution petition on 21-07-2006 and deposited balance sale
consideration on 06-03-2007. Certainly it was to get rid of the
execution petition already launched by respondent that petitioner
chose to file I.A.No.194 of 2008 after the execution petition was
filed and deposit was made.
8. It is contended by learned counsel for petitioner that
learned Sub Judge while dismissing I.A.No.194 of 2008 has not
gone into the question whether it was just and equitable to
permit respondent to proceed with execution of the decree.
Learned counsel requested that the matter may be remitted to
O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010
: 8 :
the trial court for fresh consideration.
9. A remand cannot be ordered for the mere asking.
Binding authorities on the point say that a remand must be
avoided as far as possible if on the materials on record the issue
can be determined. The decree was executable at the instance of
petitioner also. If petitioner was ready and willing to perform his
part of the contract he could have sought execution of the decree
rather than waiting for two years after filing of the execution
petition to file an application for cancellation of contract. This
court indicated in Joseph George Vs. Chacko Thomas (1992
(1) KLT 6, paragraph 10), that in the absence of positive
refusal to complete the contract, rescission of contract is not
permissible. In the absence of evidence of positive refusal or
wilful negligence of respondent in the matter executing court was
correct in permitting respondent to enjoy the fruits of the decree.
I do not find reason to interfere with the impugned order.
10. But, fact remained that respondent deposited balance
sale consideration of `.4,47,500/- in the executing court only on
06-03-2007. That means, from the expiry of the time provided to
the petitioner to get sale deed executed (13-03-2006) till 06-
03-2007 balance sale consideration was in the hands of
respondent and he was enjoying its advantage. Petitioner lost
O.P(C).No.457 of 2010 and C.R.P.No.412 of 2010
: 9 :
interest on the said amount during the said period. Having
regard to the facts and circumstances of the case I consider it
proper to direct respondent to pay interest @ 7.5% per annum
from 13-03-2006 till 06-03-2007 (date of deposit in the executing
court) on the balance sale consideration in the light of decision of
this court in Thomas E.P. Vs. K.C. Sivadasan and Ors. (2009
(3) KLJ 781).
Resultantly these petitions are dismissed but, I direct the
respondent to deposit in the executing court for payment to the
petitioner, interest @7.5% per annum on the balance sale
consideration of `.4,47,500/- from 13-03-2006 till 06-03-2007
within two months from this day failing which it will be open to
the petitioner to execute this order in the executing court as
provided under law and realise the said amount from the
respondent and his assets with cost of execution.
(THOMAS P JOSEPH, JUDGE)
Sbna/-