{"id":96190,"date":"2009-09-11T00:00:00","date_gmt":"2009-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/md-hanif-khan-vs-naresh-prasad-on-11-september-2009"},"modified":"2017-08-24T07:00:40","modified_gmt":"2017-08-24T01:30:40","slug":"md-hanif-khan-vs-naresh-prasad-on-11-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/md-hanif-khan-vs-naresh-prasad-on-11-september-2009","title":{"rendered":"Md.Hanif Khan vs Naresh Prasad on 11 September, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Md.Hanif Khan vs Naresh Prasad on 11 September, 2009<\/div>\n
      IN THE HIGH COURT OF JHARKHAND AT RANCHI.\n                       W.P.(C) No. 1502 of 2005\n                                   ...\n    Md. Hanif Khan                             ...    Petitioner\n                            -V e r s u s-\n    Naresh Prasad                              ...    Respondent\n                                   ...\nCORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.\n                                   ...\n    For the Petitioner : - M\/s. Satya Narayan Prasad &\n                            Sujeet Narayan Prasad, Advocates\n    For the Respondent : - Mr. V. shivnath, Sr. Advocate,\n                                M\/s. Sweety Topno & Anita Sinha, Advocates\n                                       ...\n      C.A.V on :01.09.2009                  Pronounced on : 11.09.2009\n\n7\/ 11.09.2009<\/pre>\n
     Challenge in this writ application is to the order dated
\n      13.01.2008 passed by the Sub-Judge-IX, Ranchi in Miscellaneous Case
\n      No. 1\/2000 filed by the petitioner\/defendant whereby the prayer of
\n      the petitioner made under Section 47 read with Section 151 of the
\n      Code of Civil Procedure for dismissing the Execution case No. 9\/98,
\n      was rejected.\n<\/p>\n
      2.    Counter affidavit has been filed on behalf of the respondents.\n<\/p>\n
      3.    Heard learned counsel for the petitioner and learned counsel
\n      for the respondent.\n<\/p>\n
      4.    Facts of the petitioner’s case in brief is as follows :-\n<\/p>\n
            An agreement dated 06.09.1990 was entered into by and
\n      between the plaintiff\/respondents and the petitioner\/defendant
\n      along with his sister under which the plaintiff had agreed to
\n      purchase 23\u00bd decimals of land in Plot No. 115 and 11 decimals in
\n      Plot No. 163, 164 and 166, total measuring 34\u00bd decimals situated
\n      under Khata No. 21 at village Samlong, P.S.- Namkum, District-
\n      Ranchi.\n<\/p>\n
            The plaintiff filed Title suit No. 94 of 1990 in the court of Sub-
\n      Judge-V, Ranchi against the defendant\/petitioner for specific
\n      performance of contract and to execute and register the deed of sale.\n<\/p>\n
            During the pendency of the suit, the parties had effected a
\n      compromise between themselves and on the basis of the compromise
\n      petition, had jointly approached the trial court for a decree in terms
\n      of the compromise.\n<\/p>\n
                                  -2-<\/span><\/p>\n
      The trial court, after considering the terms contained in the
\ncompromise petition and the statements of the parties, decreed the
\nsuit on compromise by making the compromise petition as part of
\nthe decree. The terms and conditions of compromise as noted in the
\ndecree, included inter-alia –\n<\/p>\n
      (i)     That the plaintiff had agreed to purchase 20\u00bd decimals
\n              of land from the defendant @ Rs. 13,500\/- per katha of
\n              land and the defendant had agreed to execute the sale
\n              deed and get the same registered.\n<\/p><\/blockquote>\n
      (ii)    That the parties had agreed that the sale deed will be
\n              executed in pursuance of the agreement, within one
\n              month from the date of decree and the purchaser shall
\n              get the sale deed executed by the defendant within the
\n              period stipulated.<\/p><\/blockquote>\n
      The decree was signed and declared by the trial court on
\n22.09.1994.\n<\/p>\n
5.    The plaintiff\/decree holder, filed an Execution Case No. 9\/98
\nin the court of the Sub-Judge-V at Ranchi for execution of the
\ncompromise decree against the defendant\/petitioner, on 27.08.1998.
\nAlong with the petition for execution, the plaintiff\/decree holder
\nhad also filed draft copy of the proposed sale deed for a total of
\n0.12\u00bd acres of land in Plot No. 115 of Khata No. 21 for a total
\nconsideration of Rs. 87,750\/-.\n<\/p>\n
6.    In the execution proceeding, one Amulya Ratan Manjhi had
\nappeared as an intervener claiming that he, having entered into an
\nagreement for sale of part of the suit land with the plaintiff and
\nhaving paid the consideration amount in advance, is entitled for the
\nsale deed to be executed in his favour by the defendant\/judgement
\ndebtor. The executing court allowed his intervention petition inspite
\nof the objections raised by the plaintiff\/decree holder and had also
\nallowed the intervener to file the draft sale deed, and deposit the
\nproportionate consideration amount.\n<\/p>\n
7.    The defendant\/judgement debtor appeared in the execution
\nproceeding and filed his petition under Section 47 read with Section
\n151 of the Code of Civil Procedure praying for dismissal of the
\nexecution proceeding on the ground that it was barred by limitation
\n                                  -3-<\/span><\/p>\n
and that the plaintiff\/decree holder, did not show his readiness and
\nwillingness to purchase the suit property within the period
\nstipulated in the compromise decree and on the further ground that
\nthe execution case is inconsistent with the compromise decree in as
\nmuch as in the execution case the plaintiff\/decree holder had
\nclaimed for execution and registration of sale deed in respect of 24
\ndecimals of land whereas in the compromise decree the area of total
\nland was 20\u00bd decimals.\n<\/p>\n
8.    The     plaintiff\/decree    holder\/respondent    contested    the
\npetitioner’s prayer by filing his rejoinder. After considering the rival
\nsubmissions of the parties, the learned court below vide its
\nimpugned order, rejected the petitioner’s prayer for dismissing the
\nexecution proceeding.\n<\/p>\n
9.    Assailing the impugned order, learned counsel for the
\npetitioner would raise the following grounds :-\n<\/p>\n
      (i)     The compromise decree as passed in Title Suit No.
\n      94\/1990,    was   a conditional     decree   under which the
\n      purchaser\/decree holder was required to deposit the
\n      consideration amount for 20\u00bd decimals of land or atleast
\n      express his readiness and willingness to pay the consideration
\n      amount, where-after the sale deed was to be executed by the
\n      petitioner and the entire transaction was to be concluded
\n      within one month from the date of decree. Despite the specific
\n      period of one month specified in the decree, the decree holder
\n      did not get the sale deed executed by paying or depositing the
\n      consideration amount within the period of one month. As
\n      such, the decree had become voidable and could not be
\n      enforced by way of Execution Proceeding in view of the
\n      provisions of Section 55 of the Indian Contract Act.\n<\/p><\/blockquote>\n
      (ii)    Since time was the essence of the compromise decree, it
\n      is deemed to be rescinded due to non-compliance within the
\n      stipulated period and therefore can not be enforced under law
\n      in view of the provisions of Section 28 of the Specific Relief
\n      Act.\n<\/p><\/blockquote>\n
      (iii)   Even otherwise, in terms of the compromise decree, the
\n      purchaser\/decree holder had promised to purchase the entire
\n                                -4-<\/span><\/p>\n
      20\u00bd decimals of land whereas on the one hand prayer in the
\n      execution case was made for enforcing the compromise decree
\n      in respect of 24 decimals and that too in installments, the first
\n      installment for purchase of 10\u00bd decimals and second
\n      installment, for the remaining land on an unspecified future
\n      date.\n<\/p><\/blockquote>\n
      (iv)    The executing court ought to have confined within the
\n      limits of the scope of the compromise decree and could not
\n      have extended time to the decree holder since such extension
\n      had not been prayed for or granted by the court which had
\n      passed the decree.\n<\/p><\/blockquote>\n
10.   Per contra, the stand taken by the respondent is that it was the
\npetitioner\/judgement debtor who had filed and refused to co-
\noperate with the plaintiff\/decree holder for execution of sale deed
\nand had intentionally delayed the matter on one pretext or the other
\nand consequently, the decree holder was constrained to file the
\nexecution case.\n<\/p>\n
      Learned counsel for the respondents would want to explain
\nthat the prayer in the execution proceeding as made by the decree
\nholder was for execution of sale deed and registration thereof in
\nrespect of 20\u00bd decimals of land situated under various plot numbers
\nand it was on account of typographical error that the area of land has
\nwrongly been mentioned as 10\u00bd decimals in the draft sale deed and
\nthe error has been rectified with the permission of the court.\n<\/p>\n
      Learned counsel would argue that in the suit for specific
\nperformance of contract, the matter was set at rest by the
\ncompromise decree dated 09.09.2004. Against the decree, the
\njudgement debtor did not prefer any appeal and hence the decree
\nbecame executable as it exists. The executing court is bound to
\nexecute the decree as it exists and it cannot go behind the decree. It is
\nfurther stated that the allegation that the decree holder did not co-
\noperate by showing his readiness and willingness to purchase the
\nsuit land, is false and misleading and further, the provisions of
\nSection 55 of the Indian Contract Act and Section 28 of the Specific
\nRelief Act makes a decree un-executable.\n<\/p>\n
                               -5-<\/span><\/p>\n
11.   From the facts undisputed, it transpires that the suit filed by
\nthe plaintiff\/respondents against the petitioner\/defendant for
\nspecific performance of the contract was decreed, in terms of the
\ncompromise effected between the parties, by the court of Sub-Judge-
\nV, Ranchi. As per the terms of agreement, which was made part of
\nthe decree, the plaintiff\/respondent had agreed to purchase 20\u00bd
\ndecimals of land from the petitioner for a consideration of Rs.
\n13,500\/- per katha of land and the defendant\/petitioner had agreed
\nto execute the sale deed and get the same registered. The entire
\ntransaction was to be completed within one month from the date of
\ndecree.\n<\/p>\n
12.   Apparently, time was stipulated as the essence of the contract,
\nas per the conditions in the agreement.\n<\/p>\n
      The compromise decree was not executed within the
\nstipulated period of one month and had continued to remain
\nunexecuted even till more than four years from the date of decree.\n<\/p>\n
      The plaintiff decree holder did not choose to obtain extension
\nof the period from the trial court which had passed the decree and
\nneither did he file the execution proceeding promptly after expiry of
\nthe one month stipulated period. Instead, he chose to file the
\nexecution proceeding after more than four years from the date of
\ndecree.\n<\/p>\n
13.   Amongst the grounds on which the execution proceeding has
\nbeen objected to are basically, that the execution proceeding is
\nbarred by limitation in as much as that the time for execution of the
\ndecree was stipulated in the terms of compromise itself which had
\nformed part of the decree and the decree holder having not made
\nany effort to get the decree executed within the period stipulated nor
\nto get the period extended by order of the trial court, the attempt to
\nget the decree executed after a lapse of more than four years, is not
\ntenable under the law.\n<\/p>\n
14.   I find force in this ground and the arguments advanced by the
\nlearned counsel for the petitioner. The decree was essentially for
\nspecific performance of contract in terms of the agreement entered
\ninto between the parties and the period of one month from the date
\nof decree was stipulated for the performance of the contract. If for
\n                                 -6-<\/span><\/p>\n
any reason, the performance was not made within the period
\nstipulated, then the decree holder ought to have sought for extension
\nof the period from the trial court for making payment of the
\nconsideration amount and get the sale deed executed, from the same
\ncourt which had passed the decree.\n<\/p>\n
      It may be noted here that the court which had passed the
\ndecree, was the court of Sub-Judge-V whereas the execution
\nproceeding has been filed in the court of Sub-Judge-IX apparently
\nindicating thereby that both the courts were not one and the same.\n<\/p>\n
15.   The petitioner has taken the objections to the execution of the
\ndecree on the basis of the provisions of Section 16 and Section 28 of
\nthe Specific Relief Act and had also pleaded the ground that the
\nplaintiff\/decree holder did not come forward to pay the
\nconsideration amount or even to show his readiness or willingness
\nto pay the consideration amount at all and therefore the contract for
\nspecific performance should be deemed as un-enforceable against
\nthe petitioner\/judgement debtor. In the counter affidavit of the
\nRespondent\/decree holder it appears that except a denial of the
\njudgement debtor’s allegation, there is no specific statement that the
\ndecree holder had demanded the judgement debtor to perform his
\npart of the contract by expressing his readiness and willingness to
\npay the consideration money, within the period stipulated in the
\ncontract or issued any demand notice to the judgement debtor. No
\nexplanation is coming from the decree holder\/respondents as to
\nwhy he did not purchase the stamp papers and then ask for the
\nexecution of the sale deed within the period stipulated in the decree.\n<\/p>\n
16.   For better appreciation of the grounds, reference to the
\nprovisions of Section 16 of the Specific Relief Act (in short ‘the Act’)
\nmay be made.\n<\/p>\n
      This Section, in so far it is relevant, is as under :-
\n      “16. Personal, bars to relief. – Specific performance of a
\n      contract cannot be enforced in favour of a person –\n<\/p>\n
      (a) to (b) ……………………..\n<\/p>\n
      (c)   who fails to aver and prove that he has performed or
\n      has always been ready and willing to perform the essential
\n      terms of the contract which are to be performed by him,
\n                                -7-<\/span><\/p>\n
      other than terms the performance of which has been
\n      prevented or waived by the defendant.\n<\/p>\n
      Explanation. – For the purpose of clause (c), –\n<\/p>\n
      (i)   Where a contract involves the payment of money, it is
\n      not essential for the plaintiff to actually tender to the
\n      defendant or to deposit in Court any money except when so
\n      directed by the Court;\n<\/p>\n
      (ii) the plaintiff must aver performance of, or readiness
\n      and willingness to perform, the contract according to its true
\n      construction.”\n<\/p>\n
17.          Section 28 of the Act reads as follows :-\n<\/p>\n
      “28. Rescission in certain circumstances of contracts for the
\n      sale or lease of immovable property, the specific
\n      performance of which has been decreed. – (1) Where in any
\n      suit a decree for specific performance of a contract for the
\n      sale or lease of immovable property has been made and
\n      purchaser or lessee does not, within the period allowed by
\n      the decree or such further period as the Court may allow,
\n      pay the purchase money or other sum which the Court has
\n      ordered him to pay, the vendor or lessor may apply in the
\n      same suit in which the decrees is made, to have the contract
\n      rescinded and on such application the Court may, by order,
\n      rescind the contract either so far as regards the party in
\n      default or either so far as regards the party in default or
\n      either so far as regards the party in default or altogether, as
\n      the justice of the case may require.”\n<\/p><\/blockquote>\n
18.   From a bare reading of the provisions of Section 16, it would
\nbe manifest that the averment of readiness and willingness of the
\npurchaser to perform his part of the contract is a sine-qua-non for the
\ngrant of relief for specific performance.\n<\/p>\n
19.   The provisions of Section 28 of the Act lays down that after a
\ndecree for specific performance of contract for the sale of immovable
\nproperty has been made and the purchaser decree-holder does not,
\nwithin the period allowed by the decree or such further period as the
\nCourt may allow, pay the purchase money which the Court has
\nordered him to pay, the vendor judgment-debtor may apply in the
\nsame suit in which decree is made, to have the contract rescinded.\n<\/p>\n
20.   In the case of V. S. Palanichamy Chettiar Firm Vs. C.
\nAlagappan, AIR 1999 Supreme Court 918, a similar issue came up
\nbefore the Court for consideration in which extension of time was
\nprayed for by the decree holder, after five years of the date of decree.
\nUpon considering the facts of the case, the Court had held that
\n                               -8-<\/span><\/p>\n
though the executing court, being the same court which had passed
\nthe decree, had the discretion to extend the time, but considering the
\ndelay of more than five years, it had observed that equity demands
\nthat discretion be not exercised in favour of the decree holder and no
\nextension of time be granted to them to comply with the decree.\n<\/p>\n
21.   In the present case, the facts are almost similar in as much as
\nthough the decree as per the terms of agreement, was executable
\nwithin a period of one month from the date of decree, but the same
\nwas not executed even beyond four years of date of decree. The
\ndecree holder did not choose to get the period extended, by the court
\nwhich had passed the decree and after more than four years, he filed
\nthe execution case seeking execution of the decree. The judgement-
\ndebtor\/petitioner though did not file any separate petition for
\nrescinding the contract but had objected to the execution on the
\nground of limitation expressing thereby that the agreement for
\nspecific performance had become voidable at the option of the
\njudgement-debtor and he is not therefore liable to perform his part
\nof the contract.\n<\/p>\n
22.   From the facts as it would appear, the execution proceeding
\nwas not filed in the same court which had passed the decree. As
\nsuch, the executing court was bound to confine itself within the
\nscope of the decree itself and it had no jurisdiction therefore to grant
\nany extension of the time for performance of the contract under the
\ndecree.\n<\/p>\n
23.   It appears from the impugned order of the court below that
\nthough the petitioner had raised the several grounds objecting the
\ninitiation and continuance of the execution proceeding, the learned
\ncourt below has not discussed the several grounds, including the
\nground that even the prayer for execution of the decree was not in
\nconsonance with the decree itself in as much as the decree was for
\nexecution of the sale deed in respect of 20\u00bd decimals of land whereas
\nthe prayer for execution was made for 24 decimals and furthermore,
\nthere was no stipulation in the decree that the purchase of land
\nwould be in installments by making part payment of the
\nconsideration amount against part of the suit lands.\n<\/p>\n
                                        -9-<\/span><\/p>\n
        24.       For the reasons discussed above, I find merit in this writ
\n        application. Accordingly, the same is allowed. The impugned order
\n        of the learned court below dated 13.01.2008 (Annexure-9) is hereby
\n        set aside. The execution proceeding vide Execution Case No. 9\/98 is
\n        hereby dismissed.\n<\/p>\n
                                                          (D.G.R.Patnaik, J.)
\nBirendra\/A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Md.Hanif Khan vs Naresh Prasad on 11 September, 2009 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(C) No. 1502 of 2005 … Md. Hanif Khan … Petitioner -V e r s u s- Naresh Prasad … Respondent … CORAM: – HON’BLE MR. JUSTICE D.G.R. PATNAIK. … For the Petitioner : – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-96190","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nMd.Hanif Khan vs Naresh Prasad on 11 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/md-hanif-khan-vs-naresh-prasad-on-11-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Md.Hanif Khan vs Naresh Prasad on 11 September, 2009 - 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