JUDGMENT
Vinod K. Sharma, J.
1. Present revision petition has been filed against an order passed by the learned Additional Civil Judge (Senior Division), Pehowa dismissing the application moved by the petitioner for execution of the decree of specific performance.
2. The petitioner had filed a suit for possession by way of specific performance of agreement to sell dated 20.11.1990 vide which respondent Judgment-debtor had agreed to sell land measuring 1 kanal 14 marlas situated within the revenue estate of Pehowa. The learned trial Court was pleased to decree the suit with costs and directions were issued to the defendant to get the sale deed executed and registered in favour of the decree-holder on payment of Rs. 3,850/-per marla less amount of Rs. 20,000/- already received by the defendant within a period of three months from the passing of the judgment. It was further directed that on the failure of the defendant Judgment-debtor to do so the plaintiff will be at liberty to get the sale-deed executed and registered through the court. The decree was passed on 13.10.1998.
3. As the defendant failed to get the sale-deed executed on receipt of balance payment, the petitioner decree-holder moved an application on 24.4.2001 for execution of the decree passed by the learned trial Court. The decree holder sought extension of time for deposit of the decretal amount where as the same was objected to by the judgment-debtor by seeking recision of the contract. The learned Executing Court framed two points for consideration viz:
1. Whether the time can be extended in favour of the decree-holder ?
2. If it can be extended then the Judgment -debtor’s objection regarding recision of contract is to be thrown away and if the time cannot be extended then the objections of the Judgment-debtor will prevail.
Learned counsel for the decree-holder claimed that it was on account of fault of the counsel that he was not made aware of the deposit and therefore, he should not be allowed to suffer on account of this. This contention was rejected for want of affidavit from his counsel or his clerk in this regard. It was further observed that even the decree-holder had failed to swear any affidavit in support of his contention. It was further claimed that the court did not lose power to extend the time after passing of the decree and further that the decree could be executed within 12 years from the date of its passing and therefore, the execution application was within time. The contention of the decree-holder further was that there was sufficient reason for the decree-holder not to deposit the money in time and further that even oral request for extension of time can be made. These Contentions raised by the learned Counsel for the decree-holder were not rejected by the learned trial Court. The contention that the decree could be executed within 12 years was rejected on the ground that there was no sufficient ground for extension of time. The other contentions were held to be not arising on the facts of the case and accordingly, the prayer of the Judgment Debtor for recision of contract under Section 28 of the Specific Relief Act (for short the Act) was allowed. The Decree Holder filed an appeal against the decision of the Executing Court and the same was dismissed being not maintainable.
4. The learned Counsel for the petitioner by placing reliance on the judgment of Calcutta High Court in the case of Tivoli Park Apartments Pvt. Ltd. v. Kumar Dhirendra Mullick 2000(1) R.C.R. (Civil) 440 (Calcutta) contended that as the Court had not fixed or allowed any period for depositing any money by the petitioner, therefore, Section 28 of the Act has no application in the present case. Learned Counsel for the petitioner thereafter placed reliance on the judgment of this Court in the case of Smt. Sarupi and Ors. v. Har Gian and Ors. to contend that in case of default on the part of the decree-holder to deposit the money Judgment-debtor is entitled to apply for recision of contract under Section 28(1) of the Act. But so long as the Judgment-debtor does not apply for such relief the decree subsists and decree-holder can still execute it within a period of limitation by depositing the purchase money within the time allowed so extended. The contention of the learned Counsel for the petitioner was that as the decree did not direct that in the event of default in deposit within the time fixed the suit shall stand dismissed, it was not open to the court to have rejected the application.
5. Mr. Ashok Verma, learned Counsel appearing on behalf of the respondent while relying upon the judgment of this Court in the case of Chanda v. Rattni (1999-3)123 P.L.R. 135contended that as the decree-holder has failed to deposit the balance sale consideration within the period fixed by the Court the Judgment-debtor was within his right to ask the court for recision of the agreement to sell. Para Nos. 2, 3 and 6 of the judgment are reproduced below for ready reference:
2. Defendants entered into an agreement dated 25.3.1989 to sell land measuring 54 kanals 13 marlas to the plaintiff and received Rs. 56,000/- as earnest money. The sale -deed was to be executed on or before 15.6.1989 on payment of the balance sale consideration of Rs. 1,39,000/-. Since the defendants did not execute the sale-deed within the time specified in the agreement the plaintiff-petitioner instituted a suit on 24.1.1980 for specific performance of the agreement to sell. The suit was decreed ex parte on 1.5.1992 and it is common case of the parties that the decree has become final between them. Para 6 of the judgment of the trial Court decreeing the suit reads as under:
For the reasons discussed above, the suit succeeds. A decree for possession of the suit land by way of specific performance is hereby passed in favour of the plaintiff and against the defendants with costs. Defendants are directed to execute the proposed sale-deed on payment of the balance sale price of Rs. 1,39,000/- and get it registered within a period of two months from the date of this decree failing which the plaintiff shall be at liberty to get the sale-deed executed and registered under Order 21, Rule 12 C.P.C. Decree be drawn up accordingly and file be consigned to the record room.
3. The plaintiff did not deposit the balance sale price within two months from the date of the decree nor did the defendants execute the sale-deed. Plaintiff then moved an application on 10.10.1992 for the execution of the decree pleading therein that since the judgment-debtor respondents had failed to execute the sale-deed the same be executed through Court and that he (plaintiff) be allowed to deposit the balance sale price in Court. During the pendency of this application one Sarup Singh through his general attorney moved an application for being impleaded as a party in the execution proceedings on the plea that he was the owner in possession of the suit land on the basis of a decree dated 26.7.1991 which the defendants are alleged to have suffered in his favour. The executing court as per its order dated 14.8.1995 allowed the applicant to be impleaded in the execution proceedings. Sarup Singh then filed objection to the execution application which were dismissed as per order dated 10.9.1998 and it was held that he was not a bona fide purchaser of the suit land. On 8.9.1998 the judgment-debtors respondents moved an application under Section 28 of the Specific Relief Act (for short the Act) with a prayer that the agreement to sell dated 25.3.1989 be rescinded since the plaintiff-petitioner had failed to deposit the balance sale consideration within the time allowed by the Court. This application was contested by the petitioner-plaintiff and on a consideration of the contentions advanced by the counsel for the parties the trial Court as per its order dated 15.9.1998 allowed the application and rescinded the original contract dated 25.3.1989 holding that the plaintiff had failed to deposit the balance sale consideration within the time allowed by the Court. The execution application filed by the plaintiff-petitioner was consequently dismissed. Hence the present revision petition.
6. Having given my thoughtful consideration to the rival contentions of the parties, I find merit in what is contended on behalf of the defendants-respondents. A perusal of para 6 of the judgment of the trial Court as reproduced above whereby the suit for specific performance was decreed makes it clear that the defendants had been directed to execute the sale-deed within two months from the date of the decree on payment of the balance of sale price of Rs. 1,39,000/-. Payment of the balance sale consideration was, therefore, a condition precedent for the execution of the sale-deed. It is implicit in the direction that the plaintiff was required to deposit the balance sale consideration within the stipulated period in the first instance and it was only (hen that the defendants were required to execute the sale-deed. Admittedly, the plaintiff has not deposited the balance sale consideration so far. Since he failed to perform his part of the obligation under the decree the defendants were not obliged to execute the sale-deed. Now when the suit for specific performance was decreed and the plaintiff tailed to deposit the balance sale consideration within the period fixed by the Court the defendants had a right to ask the Court to rescind the agreement to sell because of the default committed by the plaintiff. It is not the case of the plaintiff-petitioner that he ever applied for extension of time to the Court. Section 28 of the Act is clear and enables the Court to rescind the contract where in pursuance to the decree for specific performance the plaintiff makes default in the payment of the purchase money or other sum as ordered to be paid by the Court. In this view of the matter, no fault can be found with the impugned order. The fact that Sarup Singh was impleaded as a party in the execution proceedings or that the objections filed by him were dismissed by the executing Court or that the defendants claim to have sold the land to any subsequent purchaser are not relevant for the purpose of determining whether the trial Court was justified in rescinding the agreement to sell. The view that I have taken finds supports from a judgment of this Court in Onkar Nath and Anr. v. Basheer and Ors. (1985-2)88 P.L.R. 423.
Thus, in view of the law laid down by this Court, there is no force in the present revision petition as it is not in dispute that though the decree was passed by the Court on 13,10.1998 stipulating therein that the sale-deed was required to be executed within a period of three months no steps whatsoever were taken till 17.5.2002 when the application was moved for execution seeking extension of time to deposit the amount.
7. Learned Counsel for the respondent further contended that the suit for specific performance is in the nature of discretionary remedy and on equity the petitioner was not entitled to get the decree executed after such a long time. In order to appreciate this contention it would be necessary to note certain dates. The agreement to sell was executed on 20.12.1990 and suit for specific performance was filed on 13.12.1991. The suit was decreed on 13.12.1998 stipulating therein that the balance sale consideration was to be paid/received by 13.1.1999. The execution application was filed on 20.4.2001 without seeking permission to deposit the decretal amount. It was only after the Judgment Debtor filed an application for recision of agreement on 28.5.2001 that application for extension of time was moved on 13.8.2001.
8. There is force in the contention as this Court in the case of Sneh Lata Verma v. Baldev Raj Monga (1998-2)119 P.L.R. 332 has been pleased to lay down as under:
Civil Procedure Code, Section 148 – Specific Relief Act, Section 28(2) -Condition for specific performance – Extension of time – Interest on amount of consideration – Field of specific performance is governed by equity and discretion of the Court – Court has the jurisdiction to impose conditions to derive balance between the parties and it will be just and proper to impose such conditions to apply the concept of automatic forfeiture of right of decree-holder in a case of default. The Court has also the power and discretion to extend time for fulfillment of such condition if it is satisfied that the decree-holder is not taking undue benefit by delaying the performance due on his part. If the court is satisfied of the just and reasonable cause, it can extend the time for deposit of balance consideration amount and to balance the equity between the parties it may direct the decree-holder to pay interest on the balance amount for the period of default. However, the concept of automatic forfeiture of right of decree-holder can be applied only on the basis of unambiguous language used in the decree. Revision against the order of extension of time dismissed.
Thus, it would be seen that the order passed by the learned Executing Court is just and equitable and does not call for any interference by this Court in exercise of revisional jurisdiction.
Dismissed.