Judgment · High Court · 2009

N Choudhury, learned counsel appearing for the plaintiff decree holder. Heard Mr. A. Sarma, learned counsel for the petitioner and Mr. A Title Suit No. 109/06 was instituted by the plaintiff/respondent praying specific performance of contract dated 15.12.98 executed between the p laintiff and the sole defendant. The allegations made in the plaint interalia is that the defendant petitioner who has agreed to sale the flat to the plaintiff has made a deed of agreement being No. 9275/99 between the parties on 15.12.98 incorporating the necessary terms wherein and whereunder the defendants agreed t o hand over the possession of the flat after completion of the construction wit hin 36 months. The plaintiff borrowed money from the HDFC Ltd to pay to the defe ndant on account of the said flat and on demand made by the defendant/ builder a substantial part of the money amounting to Rs. 4,54,200/- in total was paid to the defendant on various dates.

The plaintiff was willing and ready to pay the b alance amount of Rs. 56,800/- to the defendant but the defendant has not honoure d the the said agreement and accordingly, the plaintiff instituted the suit for specific performance of contract. Though the defendant have appeared initially for some time but subsequently kept himself away from the proceeding and the s uit was decreed ex-parte vide judgment and order dated 19.6.07. The plaintiffs suit was decreed directing the defendant to complete the specific performance of contract executed on 15.12.99 for the sale of the flat in question completing the construction within two months and hand over the possession by executing the sale deed within the stipulated time. In the event of failure, the defendant w as directed to return the amount of Rs. 4,54,200/- with interest @ 21% p.a. on t he aforesaid amount. The defendant not having honoured the decree, the plaintif f filed Title Execution Case No.

12/07 in terms of the order passed by the Execu ting Court as the flat in question was not delivered to the plaintiff/decree hol der. At this stage, the present petitioner appeared before the learned Executing Court and filed an application under Order 21 Rule 97,98,101 r/w Section 151 CP C which was registered as Misc. (J) Case No. 135/07 praying for staying the exe cution of the decree and to recall the writ issued in the execution. However, a fter proceeding some time, the aforesaid app0lication of the petitioner was dism issed for default on 20.12.07. In the meantime the defendant/judgment debtor als o filed an application under Secti8on 47 of the CPC raising the objection to the execution of the decree to the effect that in the decree there is no specific direction to hand over the suit flat to the plaintiff/decree holder and as such such direction to hand over the possession of the suit flat is required to be re called forthwith.

In terms of the order passed by the learned executing court, t he possession of the suit flat is taken over by the officer of the court( Civil Nazir) on the prayer of the petitioner and the said flat is now under attachment vide order dated 6.2.08. The present petitioner again filed an application bef ore the learned executing court praying for restoration of possession of the s uit flat in his favour from whom possession was taken by the Civil Nazir in ter ms of the writ issued by the executing court. Be it stated herein that before fi nalisation of the transaction of the agreement between the plaintiff and the def endant, and in continuation of the agreement the defendant entered into an agree ment on 22.4.06 with the present petitioner and allotted the suit flat to the pe titioner. It is contended by the petitioner that in terms of the said agreement the defendant handed over the possession of the suit flat to the present petitio ner and accordingly he came into the possession thereof.

Mr. Choudhury has pointed out that as disclosed vide order dated 25.8.08, the petitioner has expressed his intention not to proceed with the aforesaid applica tion dated 8.1.08 which was allowed to be withdrawn as prayed for by the petitio ner vide order dated 24.1.08 which was registered as Misc. (J) Case No. 5/08. Mr. Sarma disputes the said position but no contrary order could be shown before me. In terms of the order dated 25.08.08 the position as it stands is that the re is no application of the petitioner pending before the learned Executing Cou rt. Vide order dated 6.2.08 the learned trial court interalia passed an order stating that the decree holder did not vacate the suit flat and the ju dgment debter also did not execute the sale deed or return the money which was received from the decree holder. In view of the aforesaid situation the learned executing court attached the suit flat which is the subject matter of the case.

Challenging the said order, the present revision petitioner has been filed. Though the petitioner has also challenged the order dated 4.10.0 7 in this petition, it is submitted by Mr. Choudhury that the said order has bee n vacated by the learned executing court itself. In view of the above discussion it transpires that there is no a pplication pending before the learned executing court from the side of the pres ent petitioner. The present petitioner is a third party to the proceeding and hi s objection is against the execution of the decree which was registered as Misc. J. Case No. 135/07 and the same has been dismissed. The application of the peti tioner which was registered as Misc. J. Case No. 5/08 praying for restoration of the possession of the suit flat was again dismissed on withdrawal in terms of the order dated 25.8.08.Those orders have attained finality. In the midst of the above facts situation and the objection of the petitioner against the execution of the decree filed under Order 21 Rule 97 and 98 having been dismissed, the petitioner has no lags to challenge the impugn ed order dated 6.2.08 before this court.

Accordingly, I do not find any merit in this revision petition and the same stands dismissed. In view of the nature of the contest made by the parties and the conduct of the defendant that during the continuation of the agreement, the sui t flat was allotted in favour of the present petitioner, a third party, it is de sirable that the decree in question should be executed as early as possible and the learned executing court shall execute the decree without granting unnecessar y adjournment to the parties. Interim order passed earlier stands vacated. Return the LCRs forthwith.