IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(C) No. 1502 of 2005
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Md. Hanif Khan ... Petitioner
-V e r s u s-
Naresh Prasad ... Respondent
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner : - M/s. Satya Narayan Prasad &
Sujeet Narayan Prasad, Advocates
For the Respondent : - Mr. V. shivnath, Sr. Advocate,
M/s. Sweety Topno & Anita Sinha, Advocates
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C.A.V on :01.09.2009 Pronounced on : 11.09.2009
7/ 11.09.2009
Challenge in this writ application is to the order dated
13.01.2008 passed by the Sub-Judge-IX, Ranchi in Miscellaneous Case
No. 1/2000 filed by the petitioner/defendant whereby the prayer of
the petitioner made under Section 47 read with Section 151 of the
Code of Civil Procedure for dismissing the Execution case No. 9/98,
was rejected.
2. Counter affidavit has been filed on behalf of the respondents.
3. Heard learned counsel for the petitioner and learned counsel
for the respondent.
4. Facts of the petitioner’s case in brief is as follows :-
An agreement dated 06.09.1990 was entered into by and
between the plaintiff/respondents and the petitioner/defendant
along with his sister under which the plaintiff had agreed to
purchase 23½ decimals of land in Plot No. 115 and 11 decimals in
Plot No. 163, 164 and 166, total measuring 34½ decimals situated
under Khata No. 21 at village Samlong, P.S.- Namkum, District-
Ranchi.
The plaintiff filed Title suit No. 94 of 1990 in the court of Sub-
Judge-V, Ranchi against the defendant/petitioner for specific
performance of contract and to execute and register the deed of sale.
During the pendency of the suit, the parties had effected a
compromise between themselves and on the basis of the compromise
petition, had jointly approached the trial court for a decree in terms
of the compromise.
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The trial court, after considering the terms contained in the
compromise petition and the statements of the parties, decreed the
suit on compromise by making the compromise petition as part of
the decree. The terms and conditions of compromise as noted in the
decree, included inter-alia –
(i) That the plaintiff had agreed to purchase 20½ decimals
of land from the defendant @ Rs. 13,500/- per katha of
land and the defendant had agreed to execute the sale
deed and get the same registered.
(ii) That the parties had agreed that the sale deed will be
executed in pursuance of the agreement, within one
month from the date of decree and the purchaser shall
get the sale deed executed by the defendant within the
period stipulated.
The decree was signed and declared by the trial court on
22.09.1994.
5. The plaintiff/decree holder, filed an Execution Case No. 9/98
in the court of the Sub-Judge-V at Ranchi for execution of the
compromise decree against the defendant/petitioner, on 27.08.1998.
Along with the petition for execution, the plaintiff/decree holder
had also filed draft copy of the proposed sale deed for a total of
0.12½ acres of land in Plot No. 115 of Khata No. 21 for a total
consideration of Rs. 87,750/-.
6. In the execution proceeding, one Amulya Ratan Manjhi had
appeared as an intervener claiming that he, having entered into an
agreement for sale of part of the suit land with the plaintiff and
having paid the consideration amount in advance, is entitled for the
sale deed to be executed in his favour by the defendant/judgement
debtor. The executing court allowed his intervention petition inspite
of the objections raised by the plaintiff/decree holder and had also
allowed the intervener to file the draft sale deed, and deposit the
proportionate consideration amount.
7. The defendant/judgement debtor appeared in the execution
proceeding and filed his petition under Section 47 read with Section
151 of the Code of Civil Procedure praying for dismissal of the
execution proceeding on the ground that it was barred by limitation
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and that the plaintiff/decree holder, did not show his readiness and
willingness to purchase the suit property within the period
stipulated in the compromise decree and on the further ground that
the execution case is inconsistent with the compromise decree in as
much as in the execution case the plaintiff/decree holder had
claimed for execution and registration of sale deed in respect of 24
decimals of land whereas in the compromise decree the area of total
land was 20½ decimals.
8. The plaintiff/decree holder/respondent contested the
petitioner’s prayer by filing his rejoinder. After considering the rival
submissions of the parties, the learned court below vide its
impugned order, rejected the petitioner’s prayer for dismissing the
execution proceeding.
9. Assailing the impugned order, learned counsel for the
petitioner would raise the following grounds :-
(i) The compromise decree as passed in Title Suit No.
94/1990, was a conditional decree under which the
purchaser/decree holder was required to deposit the
consideration amount for 20½ decimals of land or atleast
express his readiness and willingness to pay the consideration
amount, where-after the sale deed was to be executed by the
petitioner and the entire transaction was to be concluded
within one month from the date of decree. Despite the specific
period of one month specified in the decree, the decree holder
did not get the sale deed executed by paying or depositing the
consideration amount within the period of one month. As
such, the decree had become voidable and could not be
enforced by way of Execution Proceeding in view of the
provisions of Section 55 of the Indian Contract Act.
(ii) Since time was the essence of the compromise decree, it
is deemed to be rescinded due to non-compliance within the
stipulated period and therefore can not be enforced under law
in view of the provisions of Section 28 of the Specific Relief
Act.
(iii) Even otherwise, in terms of the compromise decree, the
purchaser/decree holder had promised to purchase the entire
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execution case was made for enforcing the compromise decree
in respect of 24 decimals and that too in installments, the first
installment for purchase of 10½ decimals and second
installment, for the remaining land on an unspecified future
date.
(iv) The executing court ought to have confined within the
limits of the scope of the compromise decree and could not
have extended time to the decree holder since such extension
had not been prayed for or granted by the court which had
passed the decree.
10. Per contra, the stand taken by the respondent is that it was the
petitioner/judgement debtor who had filed and refused to co-
operate with the plaintiff/decree holder for execution of sale deed
and had intentionally delayed the matter on one pretext or the other
and consequently, the decree holder was constrained to file the
execution case.
Learned counsel for the respondents would want to explain
that the prayer in the execution proceeding as made by the decree
holder was for execution of sale deed and registration thereof in
respect of 20½ decimals of land situated under various plot numbers
and it was on account of typographical error that the area of land has
wrongly been mentioned as 10½ decimals in the draft sale deed and
the error has been rectified with the permission of the court.
Learned counsel would argue that in the suit for specific
performance of contract, the matter was set at rest by the
compromise decree dated 09.09.2004. Against the decree, the
judgement debtor did not prefer any appeal and hence the decree
became executable as it exists. The executing court is bound to
execute the decree as it exists and it cannot go behind the decree. It is
further stated that the allegation that the decree holder did not co-
operate by showing his readiness and willingness to purchase the
suit land, is false and misleading and further, the provisions of
Section 55 of the Indian Contract Act and Section 28 of the Specific
Relief Act makes a decree un-executable.
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11. From the facts undisputed, it transpires that the suit filed by
the plaintiff/respondents against the petitioner/defendant for
specific performance of the contract was decreed, in terms of the
compromise effected between the parties, by the court of Sub-Judge-
V, Ranchi. As per the terms of agreement, which was made part of
the decree, the plaintiff/respondent had agreed to purchase 20½
decimals of land from the petitioner for a consideration of Rs.
13,500/- per katha of land and the defendant/petitioner had agreed
to execute the sale deed and get the same registered. The entire
transaction was to be completed within one month from the date of
decree.
12. Apparently, time was stipulated as the essence of the contract,
as per the conditions in the agreement.
The compromise decree was not executed within the
stipulated period of one month and had continued to remain
unexecuted even till more than four years from the date of decree.
The plaintiff decree holder did not choose to obtain extension
of the period from the trial court which had passed the decree and
neither did he file the execution proceeding promptly after expiry of
the one month stipulated period. Instead, he chose to file the
execution proceeding after more than four years from the date of
decree.
13. Amongst the grounds on which the execution proceeding has
been objected to are basically, that the execution proceeding is
barred by limitation in as much as that the time for execution of the
decree was stipulated in the terms of compromise itself which had
formed part of the decree and the decree holder having not made
any effort to get the decree executed within the period stipulated nor
to get the period extended by order of the trial court, the attempt to
get the decree executed after a lapse of more than four years, is not
tenable under the law.
14. I find force in this ground and the arguments advanced by the
learned counsel for the petitioner. The decree was essentially for
specific performance of contract in terms of the agreement entered
into between the parties and the period of one month from the date
of decree was stipulated for the performance of the contract. If for
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any reason, the performance was not made within the period
stipulated, then the decree holder ought to have sought for extension
of the period from the trial court for making payment of the
consideration amount and get the sale deed executed, from the same
court which had passed the decree.
It may be noted here that the court which had passed the
decree, was the court of Sub-Judge-V whereas the execution
proceeding has been filed in the court of Sub-Judge-IX apparently
indicating thereby that both the courts were not one and the same.
15. The petitioner has taken the objections to the execution of the
decree on the basis of the provisions of Section 16 and Section 28 of
the Specific Relief Act and had also pleaded the ground that the
plaintiff/decree holder did not come forward to pay the
consideration amount or even to show his readiness or willingness
to pay the consideration amount at all and therefore the contract for
specific performance should be deemed as un-enforceable against
the petitioner/judgement debtor. In the counter affidavit of the
Respondent/decree holder it appears that except a denial of the
judgement debtor’s allegation, there is no specific statement that the
decree holder had demanded the judgement debtor to perform his
part of the contract by expressing his readiness and willingness to
pay the consideration money, within the period stipulated in the
contract or issued any demand notice to the judgement debtor. No
explanation is coming from the decree holder/respondents as to
why he did not purchase the stamp papers and then ask for the
execution of the sale deed within the period stipulated in the decree.
16. For better appreciation of the grounds, reference to the
provisions of Section 16 of the Specific Relief Act (in short ‘the Act’)
may be made.
This Section, in so far it is relevant, is as under :-
“16. Personal, bars to relief. – Specific performance of a
contract cannot be enforced in favour of a person –
(a) to (b) ……………………..
(c) who fails to aver and prove that he has performed or
has always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
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other than terms the performance of which has been
prevented or waived by the defendant.
Explanation. – For the purpose of clause (c), –
(i) Where a contract involves the payment of money, it is
not essential for the plaintiff to actually tender to the
defendant or to deposit in Court any money except when so
directed by the Court;
(ii) the plaintiff must aver performance of, or readiness
and willingness to perform, the contract according to its true
construction.”
17. Section 28 of the Act reads as follows :-
“28. Rescission in certain circumstances of contracts for the
sale or lease of immovable property, the specific
performance of which has been decreed. – (1) Where in any
suit a decree for specific performance of a contract for the
sale or lease of immovable property has been made and
purchaser or lessee does not, within the period allowed by
the decree or such further period as the Court may allow,
pay the purchase money or other sum which the Court has
ordered him to pay, the vendor or lessor may apply in the
same suit in which the decrees is made, to have the contract
rescinded and on such application the Court may, by order,
rescind the contract either so far as regards the party in
default or either so far as regards the party in default or
either so far as regards the party in default or altogether, as
the justice of the case may require.”
18. From a bare reading of the provisions of Section 16, it would
be manifest that the averment of readiness and willingness of the
purchaser to perform his part of the contract is a sine-qua-non for the
grant of relief for specific performance.
19. The provisions of Section 28 of the Act lays down that after a
decree for specific performance of contract for the sale of immovable
property has been made and the purchaser decree-holder does not,
within the period allowed by the decree or such further period as the
Court may allow, pay the purchase money which the Court has
ordered him to pay, the vendor judgment-debtor may apply in the
same suit in which decree is made, to have the contract rescinded.
20. In the case of V. S. Palanichamy Chettiar Firm Vs. C.
Alagappan, AIR 1999 Supreme Court 918, a similar issue came up
before the Court for consideration in which extension of time was
prayed for by the decree holder, after five years of the date of decree.
Upon considering the facts of the case, the Court had held that
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though the executing court, being the same court which had passed
the decree, had the discretion to extend the time, but considering the
delay of more than five years, it had observed that equity demands
that discretion be not exercised in favour of the decree holder and no
extension of time be granted to them to comply with the decree.
21. In the present case, the facts are almost similar in as much as
though the decree as per the terms of agreement, was executable
within a period of one month from the date of decree, but the same
was not executed even beyond four years of date of decree. The
decree holder did not choose to get the period extended, by the court
which had passed the decree and after more than four years, he filed
the execution case seeking execution of the decree. The judgement-
debtor/petitioner though did not file any separate petition for
rescinding the contract but had objected to the execution on the
ground of limitation expressing thereby that the agreement for
specific performance had become voidable at the option of the
judgement-debtor and he is not therefore liable to perform his part
of the contract.
22. From the facts as it would appear, the execution proceeding
was not filed in the same court which had passed the decree. As
such, the executing court was bound to confine itself within the
scope of the decree itself and it had no jurisdiction therefore to grant
any extension of the time for performance of the contract under the
decree.
23. It appears from the impugned order of the court below that
though the petitioner had raised the several grounds objecting the
initiation and continuance of the execution proceeding, the learned
court below has not discussed the several grounds, including the
ground that even the prayer for execution of the decree was not in
consonance with the decree itself in as much as the decree was for
execution of the sale deed in respect of 20½ decimals of land whereas
the prayer for execution was made for 24 decimals and furthermore,
there was no stipulation in the decree that the purchase of land
would be in installments by making part payment of the
consideration amount against part of the suit lands.
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24. For the reasons discussed above, I find merit in this writ
application. Accordingly, the same is allowed. The impugned order
of the learned court below dated 13.01.2008 (Annexure-9) is hereby
set aside. The execution proceeding vide Execution Case No. 9/98 is
hereby dismissed.
(D.G.R.Patnaik, J.)
Birendra/A.F.R.