SMT. BANTI BHARALI v. RANJANA BEZBARUAH & Ors

Judge, Sonitpur, Tezpur, by its first appellate judgment and decree dated 30.09.2011, allowed T.A. No. 2/2008, thereby setting aside the judgment and decree passed by the learned Trial Court. By holding that the petitioner was entitled to decree for specific performance of contract to get the sale deed registered in respect of the suit land and house standing thereon as prayed for. The respondents were directed to do the needful to execute the sale deed after receiving the balance sale consideration money of Rs.50,000/- (Rupees Fifty thousand only), preferably within 30 (thirty) days from the date of the decree. It was further ordered that if the respondents do not execute the sale deed and register it or do not receive the balance sale consideration amount of Rs.50,000/- (Rupees fifty thousand only), the review petitioner was given liberty to approach the Court to get the sale deed registered in her favour after depositing the balance amount. c. On the ground that the petitioner had not deposited balance sale consideration within the time allowed, but was deposited after a lapse of a year, the respondents had raised their objection to the executability of the decree under Section 47 CPC, which was rejected by order dated 21.07.2017, passed by the learned Civil Judge, Sonitpur, Tezpur i.e. Trial Court in TS No. 22/2005. d. Thus, the aggrieved respondents had assailed the said order dated

21.07.2017, passed by the learned Trial Court, before this Court by Page No.# 4/27 filing an application under Article 227 of the Constitution of India. e. The said application was contested by the petitioners. However, the said CRP No. 262/2017 was allowed by the order dated 29.01.2021. The said order is now under review. 6) The operative part of the said order dated 29.01.2021, passed by this Court in CRP No. 262/2017 is extracted below:- “17. Therefore, in light of the discussions above, and considering the ratio laid down in the case of Rina Bora (supra) and Chanda (supra), the Court is constrained to hold that the non- deposit of balance consideration money within thirty days from 30.09.2011, the date of judgment passed by the learned trial Court is hit by the provisions of section 28(1) of the Specific Relief Act. The typed copy of order dated 17.08.2017 (Annexure-1 of the affidavit- in- opposition) leaves no room for doubt that the respondent had deposited a sum of Rs.50,000/- on 17.06.2018, long after the time allowed by first appellate judgment had expired and also long after extended time as granted by impugned order dated 21.07.2017 had expired. Thus, the learned trial Court is found to have committed jurisdictional error in passing the order dated 21.07.2017, impugned herein. Accordingly, the Court has no hesitation to set aside the order dated 21.07.2017 impugned herein.

#18. Having noticed that the present litigation is continuing for about 16 years from the year 2005, as such, if the matter is remanded for a fresh hearing, there will be further delay, as such, it is deemed appropriate that this Court passes orders as envisaged under section 28 of the Specific Relief Act, 1963. Consequently, the unilateral agreement for sale dated 11.10.2002, executed by the petitioner no.1 in favour of the respondent hereby stands rescinded.

#19. Consequent to the rescinding of the said agreement for sale dated 11.10.2002, the petitioners are jointly and severally directed to deposit before the learned trial Court, the part sale consideration amount of Rs.1,75,000/- received by the petitioner no.1 with interest thereon @ 6% (six percent) on and from the date of filing of the suit till the date of actual deposit. Such deposit shall be made within a period of one month from the date of this order. In the event there is any delay in making such deposit, the petitioners defendants shall be liable to pay interest @ 9% on the defaulted amount on and from the date of this order till such sum is deposited in full. The respondent shall be at liberty to withdraw such deposit from the learned trial Court.

#20. In terms of the mandate of section 28(2)(a) of the Specific Relief Act, Page No.# 5/27 1963, the Court is inclined to direct the respondent, if she has obtained possession of the suit property under the agreement for sale dated 11.10.2002, to restore such possession to the petitioners within the outer period of six months on and from the date when the petitioners deposit the part sale consideration amount of Rs.1,75,000/- in favour of the respondent with intimation to her counsel on record. Under the facts and circumstances of the case, there shall be no order against the respondent for payment of rent or profits as envisaged in section 28(2)(b) of the said Act or for cost as envisaged under section 28(5) of the said Act.

#21. To the extent as indicated herein above, this application stands allowed. The appellate decree so drawn up by the learned first appellate Court would stands modified to the extent as indicated herein before. 7) The learned counsel for the petitioner had submitted that the review has been preferred because (a) certain factual error has crept in the impugned order; (b) as order which was in challenge in CRP 262/2017, was passed by the learned Trial Court in exercise of original jurisdiction under section 28 of the Specific Relief Act, 1963, in view of alternative appellate remedy available, a revision under Article 227 of the Constitution of India ought not to have been entertained; (c) the application on which the learned Trial Court had passed the order dated 21.07.2017 in TS 22/2005, was a time barred application and therefore, ought not to have been entertained. 8) The learned counsel for the petitioner had contended that section 28 of the Specific Relief Act, 1963 empowers the Trial Court to pass an order for rescission of the contract. Therefore, decree for specific performance of contract is like a preliminary decree and the suit is deemed to be pending even after grant of the decree and thus, the Trial Court retains control over the subject matter of the decree. 9) On the point of limitation, it was submitted that the learned appellate Court had passed the decree for specific performance of agreement for sale on 30.09.2011. Hence, it was submitted that the cause of action to Page No.# 6/27 invoke the provisions of section 28 of the Specific Relief Act, 1963 had accrued on 31.10.2011 and therefore, the respondent ought to have approached the learned Trial Court for rescission of contract before expiry of three years, i.e. on or before 31.10.2014. However, the respondent had approached the learned Trial Court in the month of April, 2016, which was after 4 years 6 months, for which the application was barred by limitation. 10) It was submitted that section 28 of the Specific Relief Act, 1963 does not prescribe any period of limitation for preferring any application as contemplated therein and therefore, the provision of Article 137 of the Schedule to the Limitation Act, 1963 would be attracted, prescribing 3 (three) years as the period of limitation which begins to run from the date when the right to apply accrues. Description of application Period of limitation Three years Any 137. application for which no period of limitation is provided elsewhere in this division. Time from which period begins to run When the right to apply accrues. 11) It has been submitted that by the order under review, in exercise of power under section 115 CPC read with Article 227 of the Constitution of India, this Court had allowed rescinding of the agreement for sale and had also issued incidental directions as contemplated under section 28(2) of the Specific Contract Act, 1963, which was impressible, as those orders could have been passed in suit or in appeal. 12) In support of his submissions, the learned counsel for the petitioner has cited the following two cases of (i) Kumar Dhirendra Mullick v. Page No.# 7/27 Trivoli Park Apartment (P) Ltd., (2005) 9 SCC 262, and (ii) Surinder Pal Soni v. Sohan Lal, dead, through LRs., (2020) 15 SCC 771. 13) Apart from making oral submissions, a written synopsis of argument is also submitted by the learned counsel for the petitioner, which is kept as a part of record. 14) Per contra, the learned counsel for the respondent has opposed this review application. It was submitted that this review is an appeal in disguise. It was also submitted that the power of revision under section 115(1) of the CPC empowered this Court to pass such order as “it may think fit” and therefore, the order of this Court did not suffer from any error whatsoever. 15) It was submitted that an order passed under section 28 of the Specific Relief Act, 1963 was only an order and not a decree. Hence, it was submitted that the Trial Court order dated 21.07.2017 was not amenable to appeal and therefore, this Court had rightly entertained a revision which was filed under section 115 CPC read with Article 227 of the Constitution of India. 16) It was also submitted that to test whether a particular order is a decree or not, one is required to read that particular provision of law vis-à-vis the provision of Order XX, Rule 9 of the CPC. In this regard, the following provisions were referred to, viz., (i) sections 5 and 6 of the Specific Relief Act, 1963 read with Order XX, Rule 9 CPC; (ii) section 10 of Specific Relief Act read with Order XX, Rule 12A CPC; (iii) section 22 of Hindu Succession Act, 1956 read with Order XX, Rule 14 CPC; (iv) section 231 of Mulla’s Principle of Mohammedan Law read with section 9 and Order XX, Rule 14 CPC; (v) sections 13 and 44 of Partnership Act, 1932 read with Order XX, Rule 15 CPC; (vi) section 2 of the Partition Act, 1893 read with Order XX, Rule 18 CPC; (vii) Page No.# 8/27 section 5 of the Assam Urban Areas Rent Control Act, 1972 read with Order XX, Rule 9 CPC. 17) It was further submitted that another way of determining whether an order is a decree or not is that the particular provision itself specifically specifies the word “decree”. In the said context, reference was made to the provisions of (i) section 5 of the Assam Urban Areas Rent Control Act, 1972 ; (ii) Chapter 9 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971; (iii) sections 9 to 13, 13A, 13B, and 23 of the Hindu Marriage Act, 1955. 18) It was also submitted that there was yet another way of determining as to whether an order is appealable or not is that the very provision itself specifies either the order is a “deemed decree”, or it is provided that appeal would lie against an “order”. In this regard, reference has been made to the provisions of (i) section 104 CPC; (ii) Order XXI, Rule 58(4) and Rule 103 CPC; (iii) Order XLIII, Rule 1 CPC; (iv) section 54 of the Land Acquisition Act, 1894; (iv) sections 299 and 384 of the Succession Act, 1925; and (v) section 173(1) of the Motor Vehicles Act, 1988. 19) Accordingly, it was submitted that under section 28 of the Specific Relief Act, 1963, the only question that is decided by the Court is whether the contract or agreement for sale was liable to be rescinded on account of non- compliance of conditions of the decree. In other words, it was submitted that an order passed under section 28 was whether the decree was liable to be extinguished. Accordingly, it was submitted that the order contemplated under section 28 of the Specific Relief Act, 1963 was not a decree. 20) Thus, it was submitted that the revision under section 115 CPC read with Article 227 of the Constitution of India was maintainable against the Page No.# 9/27 order dated 21.07.2017 passed by the learned Trial Court in TS No. 22/2005. 21) The learned counsel for the respondent had also submitted a written note of submissions, which is retained as a part of the record. Discussions and decision: 22) Considered the rival submissions made at the Bar as well as the respective written note of submissions. Also considered the two cases cited by the learned counsel for the petitioner. Points of determination which arise for determination in this case: 23) As per the submissions made by the learned counsel for both sides, the following points of determination arise for decision in this case:- i. Whether any factual error had crept in the order dated

29.01.2021, passed by this Court in CRP No. 262/2017? ii. Under the facts of this case, whether the Court had committed an error apparent in the face of record by entertaining a revision against the order dated 21.07.2017, in T.S. No. 22/2005, passed by the learned Civil Judge, Sonitpur, Tezpur that was passed by the learned Trial Court in exercise of power under section 28 of the Specific Relief Act, 1963? iii. Whether the order dated 21.07.2017, passed by the learned Civil Judge, Sonitpur, Tezpur in T.S. No. 22/2005 was on a time barred application? Provisions of Section 28 of the Specific Relief Act, 1963: 24) At the outset, we would refer to the provisions of section 28 of the Specific Relief Act, 2963, which is extracted herein below:-

#28. Rescission in certain circumstances of contracts for the sale or lease Page No.# 10/27 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 the 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 decree 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 altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the court— (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or the lessee as earnest money or deposit in connection with the contract. (3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:— (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this section shall be in the discretion of the court.” (emphasis supplied) Background events referred by the parties in CRP No. 262/2017: 25) In this case in hand, the petitioner had filed an execution petition to execute and/or enforce the appellate decree. The said proceeding was Page No.# 11/27 registered as T.Ex. Case No. 1/2012. In connection with the said execution case, the respondents herein had filed an objection under section 47 read with section 151 CPC, praying for dismissal of the execution petition as the petitioner had not performed her part of the agreement. The said objection was registered as Misc.(J) Case No. 28/2016. Against the said Misc.(J) Case, an objection was filed by the petitioner, praying therein for a direction to the respondents to register the sale deed by accepting balance sale consideration. By order dated

28.02.2017, passed in Misc.(J) Case No. 28/2016, the learned Executing Court had forwarded the matter to be considered in the original side as an interlocutory application and accordingly, the said Misc.(J) Case No. 28/2016 was disposed of. 26) The learned Trial Court, which was also the Executing Court, took up the matter on the original side. Accordingly, by order dated 21.07.2017, passed in T.S. No. 22/2005, the objection of the respondents was rejected and the petitioner- plaintiff was directed to deposit the balance sale consideration within 1 (one) month of the order and get the sale deed executed as per the decree. 27) It may be mentioned that in paragraph 8 of the affidavit-in- opposition filed in CRP No. 262/2017, the respondent herein had mentioned that she had deposited a cheque amounting to Rs.50,000/- (Rupees Fifty thousand only) by cheque no. 072947 dated 17.08.2017, which has been reflected in the order dated 17.08.2017, passed by the learned Civil Judge [now renamed as Civil Judge (Senior Division), Sonitpur, Tezpur in T.Ex. Case No. 1/2012. As per the order dated 17.08.2017, the said cheque has been kept in safe custody of the Court. On point of determination no. (i) as to whether any factual error had crept in Page No.# 12/27 the order dated 29.01.2021, in CRP 262/2017: 28) This Court, in paragraph 17 of the order dated 29.01.2021, passed in CRP No. 262/2017 had observed as follows:-

#17. … The typed copy of the order dated 17.08.2017 (Annexure-1 of the affidavit- in- opposition) leaves no room for doubt that the respondent had deposited a sum of Rs.50,000/- on 17.06.2018 long after the time allowed by first appellate judgment had expired. Thus, the learned trial Court is found to have committed jurisdictional error in passing the order dated 21.07.2017 impugned herein. Accordingly, the Court has no hesitation to set aside the order dated 21.07.2017, impugned herein.” 29) Thus, from the sequence of events as narrated in paragraph 26 above, and also on the perusal of the Annexure-1 to the affidavit-in-opposition filed by the review petitioner in CRP 262/2017, it is seen that the date on which cheque for a sum of Rs.50,000/- was deposited by the petitioner herein before the learned Executing Court in the proceedings of T.Ex. No. 1/2012 was on

17.08.2017, and not on 17.06.2018, as reflected in paragraph 17 of the order dated 29.01.2021, passed in CRP No. 262/2017. 30) Therefore, a typographical error is found to have crept in paragraph 17 of the order dated 29.01.2021, passed in CRP No. 262/2017. Moreover, in paragraph 3 of the said order, the suit year is wrongly recorded as

#2015. Therefore, the said suit number should be read as TS No. 22/2005 instead of TS No. 22/2015. Thus, consequential orders would be passed in the later part of this order. 31) It is seen that except for the incorrect reference to the date, the said error is not found to have adversely impacted the decision of this Court. On point of determination no. (ii) as to whether the Court had committed an error apparent in the face of record by entertaining a revision against the order Page No.# 13/27 dated 21.07.2017, in T.S. No. 22/2005, passed by the learned Civil Judge, Sonitpur, Tezpur that was passed by the learned Trial Court in exercise of power under section 28 of the Specific Relief Act, 1963? 32) In the case of Kumar Dhirendra Mullick (supra), decided by the Supreme Court of India, paragraph 1 thereof is as follows:- “This civil appeal, by grant of special leave, arises out of judgment and order dated 10-6-1999 of the High Court of Calcutta in FMA No. 37 of 1997 allowing the appeal of the respondent herein and setting aside the order of 2nd Assistant District Judge, Alipore, Calcutta, rescinding the agreement dated 16.8.1980 under section 28 of the Specific Relief Act, 1963 (hereinafter referred to as "the 1963 Act").” 33) It would also be relevant to extract herein below paragraphs 4 to 8 of the case of Kishor Ghanshyamsa Paralikar (Dead) through LRs. v. Balaji Mandir Sansthan Mangrul (Nath) & Anr., (2022) 0 Supreme(SC) 1287, which is as follows:- “4. On 12.03.2007, the appellant herein filed a suit for specific performance of an agreement dated 20.09.2002 executed by the first respondent in his favour for the sale of agricultural land bearing Survey No.3, admeasuring 10 H (Hectare), 50 R (Are) situated at Village Murtizapur, Mangrulpir Taluk, District Washim, State of Maharashtra. 5. During the pendency of the suit, a compromise was arrived at between the parties and accordingly the Trial Court vide Order dated 06.12.2010 decreed the suit in terms of the compromise. As per the compromise decree, the respondent agreed to sell the suit land for a total consideration of Rs.8,78,500/-. The appellant paid a sum of Rs. Rs.7,31,000/- immediately to the first respondent. He was required to pay the remaining amount of Rs.1,47,500/- within a period of one month from the date of the compromise decree. 6. The appellant moved an application on 11.01.2011 seeking permission of the court to deposit the balance of Rs.1,47,500/- as per the decree. The said application was allowed by the Trial Court, and accordingly, the said amount was deposited by the appellant in the court on the same day. On 12.01.2011, the first respondent executed the sale deed in respect of the suit property in favour of the appellant. On 15.01.2011, the appellant filed an application for extension of time for payment of balance of the sale consideration which was allowed by the Trial Page No.# 14/27 Court vide Order dated 02.12.2015. 7. After a passage of about three years from the date of execution of the sale deed, the first respondent filed an application for cancellation of the aforesaid sale deed and for a direction to recover possession of the suit property from the appellant. The Trial Court vide Order dated 13.01.2016 dismissed the said application. 8. Being aggrieved, the first respondent filed a writ petition before the High Court. As noticed above, the High Court has allowed the writ petition and cancelled the sale deed dated 12.01.2011.” 34) In a very recent judgment of the Supreme Court of India in the case of P. Shyamala v. Gundlur Masthan, AIR 2023 SC 1224, the Supreme Court of India had entertained a challenge to the common judgment and order dated

17.01.2022, passed by the High Court of Telengana in CRP 2374/2019 and CRP 2304/2019, by which the High Court had dismissed the said revision petitions preferred by the appellants before the Supreme Court of India. The relevant paragraphs 5 and 9 of the judgment of the Supreme Court of India are quoted below:- “5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that by an ex-parte judgment and decree dated 12.10.2013, the trial Court passed a decree for specific performance of the agreement to sell dated 9.5.2012. In the agreement to sell dated 9.5.2012, the total sale consideration was Rs.23,00,000/-, against which Rs.8,00,000/-was paid as advance. The balance sale consideration of Rs. 15,00,000/- was directed to be deposited/paid by the plaintiff under the ex-parte judgment and decree dated 12.10.2013, within two weeks from the said date, which expired on 21.10.2013. Nothing is on record that any steps were taken by the plaintiff either to deposit/pay the balance sale consideration of Rs.15,00,000/-or even calling upon the defendant to execute the sale deed as per the judgment and decree passed by the trial Court dated 12.10.2013 till the present application under Section 148 CPC and Section 28 of the Specific Relief Act was filed on 7.6.2017/19.06.2017 with a huge delay of 853 days, seeking extension of time to deposit the balance sale consideration. The reasons for delay are set out hereinabove. The explanation which was given by the plaintiff, narrated hereinabove, can hardly be said to be a sufficient explanation as to why the plaintiff did not pay the balance sale consideration as per the judgment and decree or even did not make an application within a reasonable time under Page No.# 15/27 Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time for making payment. If the plaintiff was ready with the money payable towards the balance sale consideration, he could have got the sale deed executed through power of attorney after effecting deposit/payment. In absence of any sufficient explanation, such a huge delay of 853 days ought not to have been condoned by the trial Court. * * * 9. In view of the above and for the reasons stated above, both these appeals succeed. The impugned common judgment and order dated 17.01.2022 passed by the High Court dismissing the revision applications and the common order passed by the trial Court dated 29.06.2019 allowing I.A. No. 732/2016 filed by the plaintiff seeking extension of time with a huge delay of 853 days and dismissing I.A. No. 914/2017 filed by the defendant to rescind the agreement to sell dated 09.05.2012 are hereby quashed and set aside. I.A. No. 732/2016 filed by the plaintiff under Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time with a huge delay of 853 days to deposit the balance sale consideration stands dismissed. I.A. No. 914/2017 filed by the appellant – defendant under Section 28 of the Specific Relief Act to rescind the agreement to sell dated 09.05.2012 on non- payment of/deposit of the balance sale consideration by the plaintiff, which the plaintiff was required to deposit/ pay within a period of two weeks from the date of ex-parte judgment and decree dated 12.10.2013, stands allowed. Agreement to sell dated 09.05.2012 stands rescinded in exercise of powers under Section 28 of the Specific Relief Act. However, the appellant herein is directed to refund the amount of Rs. 8,00,000/-to the plaintiff with 12% interest from 09.05.2012 till the actual payment, within a period of six weeks from today, failing which it shall carry interest @ 18% per annum.” 35) Thus, it is seen that in the case of Kumar Dhirendra Mullick (supra), an appeal was entertained against the order passed under section 28 of the Specific Relief Act, 1963. However, in the case of Kishor Ghanshyamsa Paralikar (Dead) through LRs. (supra), writ petition was entertained to assail the order passed under the said provision. Moreover, in the case of P. Shyamala (supra), the Supreme Court of India did not find fault in entertaining the civil revision petition to challenge the orders passed by the learned Trial Court in exercise of power under section 28 of the Specific Relief Act, 1963. 36) It would now be relevant to extract herein below paragraphs 19 and 20 of the case of Surinder Pal Soni (supra), wherein the Supreme Court of India had observed as follows:- Page No.# 16/27 “19. Interpreting the provisions of Section 28 of the Specific Relief Act, a three judge Bench of this Court held in Sardar Mohar Singh Ahluwalia (Dead) by LRs v. Maitrai Park Housing Co-op. Society Ltd. & Anr., AIR 1989 SC 86: “4. From the language of sub-section (1) of Section 28, it could be seen that the court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio. The very fact that Section 28 itself gives power to grant order of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial court retains its power and jurisdiction to deal with the decree of specific performance. It would also be clear that the court has power to enlarge the time in favour of the judgment-debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment-debtor and rejected. In other words, the court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance…” In Bhupinder Kumar v. Angrej Singh, (2009) 8 SCC 766 this Court held thus: “21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance. In other words, when the court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree. 22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties.”

#20. Learned Counsel appearing on behalf of the respondents placed reliance Page No.# 17/27