Writ Petition No. 55692 of 2017 · The High Court
Case Details
- 1 - NC: 2025:KHC:4182 WP No. 55692 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO.55692 OF 2017 (GM-CPC) BETWEEN: 1. SRI. M.G.MALIGACHARI, S/O. LATE GURAPPACHARI, AGED ABOUT 65 YEARS, (SENIOR CITIZEN NOT CLAIMED) 2. SMT. J.S.SHANTHAMMA W/O M.G.MALIGACHARI, AGED ABOUT 60 YEARS, BOTH ARE RESIDING AT NO.2057, 8TH MAIN, E" BLOCK, RAJAJI NAGAR, 2ND STAGE, BENGALURU – 560 010. (BY SRI. BHADRINATH R., ADVOCATE) AND: SMT. SHARADAMMA W/O T.M.MALIGACHARI, SINCE DECEASED REPRESENTED BY HER LEGAL REPRESENTATIVES, SRI. T. M. MALIGACHARI, FATHER’S NAME NOT KNOWN AGED ABOUT 76 YEARS, SRI. RAJASHEKARACHARI S/O T.M.MALIGACHARI, AGED ABOUT 46 YEARS, 1. 2. Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA …PETITIONERS - 2 - NC: 2025:KHC:4182 WP No. 55692 of 2017
Legal Reasoning
3. SMT. CHANDRAMMA D/O T.M.MALIGACHARI, AGED ABOUT 44 YEARS, THE RESPONDENT NO.1 TO 3 ARE RESIDENT OF NARASANDRA VILLAGE, HESARAGHATTA HOBLI, BENGALURU NORTH TALUK, BENGALURU – 560 089. (BY SRI PADMANABHA MAHALE, SENIOR COUNSEL A/W SRI M.SHIVAPRAKASH, ADVOCATE FOR R1 AND R2; R3 SERVED AND UNREPRESENTED) …RESPONDENTS THIS W.P. IS FIELD UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THEREBY QUASHING THE ORDER DATED 23.08.2017 PASSED BY THE I ADDITIONAL CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN EXECUTION PETITION NO.10/2006 ON THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONERS UNDER SECTION 28 OF THE SPECIFIC RELIEF ACT [IA-1] AS FOUND AT ANNEXURE-J AND ETC., THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in Execution Petition No.10/2006 dated 23.08.2017, the judgment debtor is before the Court. 2. The respondent herein has filed the suit for specific performance of an agreement of sale dated 02.05.1989, which came to be decreed. On 30.11.1998, against that, the defendants preferred RA.No.24/1999, which came to be - 3 - NC: 2025:KHC:4182 WP No. 55692 of 2017 dismissed on 13.07.2005. Thereafter, the decree holder had filed Execution Petition No.10/2006 on 20.03.2006. On 24.11.2014 the judgment debtor has filed an application under Section 28 of the Specific Relief Act seeking rescission of contract and that came to be dismissed by order dated 23.08.2017. While dismissing the application, the Court has observed that it is the case of the judgment debtor that though Execution Petition is filed, an amount of Rs.5,000/- is yet to be paid by the decree holder, in that case, he is not entitled for specific performance of the contract. 3. It is the case of the decree holder that in the decree that is passed, there is no mention about the time frame as to when the amount has to be paid. As such, Section 28 of the Specific Relief Act does not come to the rescue of the decree holder. The Court dismissed the application and observed that when the decree is silent as to the deposit of balance sale consideration amount as it is well settled principle that the Executing Court cannot go beyond the decree. As such, question of entertaining the application filed under Section 28 of the Specific Relief Act does not arise. Even though, the decree holder has filed the execution petition in the year 2006, - 4 - NC: 2025:KHC:4182 WP No. 55692 of 2017 till 2014 the judgment debtor has kept quiet and in the year 2014, he filed I.A., to rescind the contract. The said aspect goes to show that the judgment debtor with an intention to drag the proceedings filed the present application and there are no reasons assigned by the judgment debtor to allow I.A.No.1. 4. Learned counsel appearing for the judgment debtor submits that he has denied the fact that the agreement is executed, the suit is decreed and appeal is dismissed and even after dismissal of the appeal on 13.07.2005, in the year 2006 execution petition is filed, but the decree holder has not paid the remaining amount of Rs.5,000/- and he has filed petition for rescission of the contract. It is stated that at any point of time even till now neither they have paid the amount nor an application is filed seeking extension of time. When they have not done either of the two, they are not entitled and that they cannot seek the relief of specific performance and the Court ought to have rescinded the contract. 5. The learned counsel had relied on the judgment of the Hon’ble Apex Court in the case of T.L.Rajagopal Vs. - 5 - NC: 2025:KHC:4182 WP No. 55692 of 2017 S.N.Shivakumar reported in 2014 SCC Online KAR 10072, wherein at paragraph Nos.13, 17, 23 and 25 observed as under: “13. Therefore, to invoke the above provision, the person who has obtained a decree for specific performance ought to have failed to pay the money or other sum which the Court has ordered him to pay, within the period allowed by the decree or such further period as the Court may allow. In such an event the person who has suffered the decree has a right to apply to the Court in the same suit in which the decree was passed to have the contract rescinded. On such an application being made, 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. Once such an order for rescission of contract is made, the Court shall direct the purchaser or the lessee, if, he has obtained the possession of the property under the contract, to restore such possession to the vendor or lessor and also may direct payment to the vendor or lessor to pay the rents and profits which have accrued in respect of the property from the date on which the possession was obtained by the purchaser or lessee until restoration of possession to any vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee or earnest money or deposit in connection with the contract. 17. In the light of the ratio laid down in the aforementioned judgments, the law on the point can be said to be fairly settled: A decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The - 6 - NC: 2025:KHC:4182 WP No. 55692 of 2017 it is called as in a suit decree holder chooses to file an execution petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called ‘execution proceedings’, it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree for specific proceedings. But performance ‘execution proceedings’. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section 28 of the Act gives equal opportunity to the parties to the suit. If the plaintiff/decree holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant/judgment debtor to approach the Court under Section 28 of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality. 23. If the defendant was at fault, he was not willing to obey the decree, if the plaintiff had deposited the money after the expiry of the appeal period as stipulated in the decree or at least on the day he filed the execution petition, that would have been sufficient to demonstrate his bona fides. The balance sale consideration of Rs.2,85,000/- had to be deposited on the date of the suit or the date of the decree or at least on the date of filing of the execution the plaintiff/decree holder petition. But appears to have woken up after seeing the averments in I.A. under Section 28 of the Act and made up his mind to deposit the money on - 7 - NC: 2025:KHC:4182 WP No. 55692 of 2017 14.07.2011 which is nearly 8 years after the passing of the decree and 14 years from the date of the agreement. 25. Where a contract is rescinded under sub- Section (1) of Section 28 of the Act, if the justice of the case so requires, the Court can as provided under Section 28 (2)(b) of the Act order for refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. Similarly Section 65 of the Contract Act, 1872 also casts an obligation on the person who has received an advantage under void agreement or contract that becomes void, to restore it or make compensation for it, to the person from whom he the defendant/judgment debtor shall refund the advantage/earnest money received from the plaintiff/decree holder under the agreement i.e., a sum for Rs.1,75,000/- together with interest @ 18% p.a. from the date of receipt of amount till the date of payment, if he wants the rescission of the contract.” Therefore received it. He relied on the judgment of Prem Jeevan Vs. K.S.Venkata Raman and Another reported in (2017) 11 SCC 57, wherein at paragraph Nos.8 and 9 observed as under: “8. Reference to Order 20 Rule 12-A CPC shows that in every decree of specific performance of a contract, the court has to specify the period within which the payment has to be made. In the present case, the said period was two months from the date of the decree. 9. In absence of the said time being extended, the decree-holder could execute the decree only by making the payment of the decretal amount to the judgment-debtor or making the deposit in - 8 - NC: 2025:KHC:4182 WP No. 55692 of 2017 the court in terms of the said decree. In the present case, neither the said deposit was made within the stipulated time nor extension of time was sought or granted and also no explanation has been furnished for the delay in the making of the deposit. No doubt, as contended by the learned counsel for the decree-holders, relying on the judgment of this Court in Ramankutty Guptan v. Avara [Ramankutty Guptan v. Avara, (1994) 2 SCC 642], in an appropriate case the court which passed the decree could extend the time as envisaged in the Specific Relief Act, 1963. In the present case no such steps have been taken by the decree-holders.” He relied on the judgment of P.Shyamala Vs. Gundlur Masthan reported in 2023 SCC Online SC 184, wherein at paragraph Nos.24 observed as follows: and “24. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand considering Section 28 of the Specific Relief Act, we are of the opinion that the trial Court erred in exercising the discretion in favour of the plaintiff and erred in extending the time in favour of the plaintiff to deposit the balance sale consideration of Rs.15,00,000/- by condoning the huge delay of 853 days, which as observed hereinabove has not been explained sufficiently at all. As observed hereinabove, after the plaintiff was directed sale consideration of Rs.15,00,000/- within a period of two weeks from the date of ex-parte judgment and decree dated 12.10.2013, which the plaintiff failed to deposit/pay, even no application time under for extension of Section 148 CPC and Section 28 of the Specific Relief Act was made thereafter within a reasonable time and was made after a period of balance deposit the to - 9 - NC: 2025:KHC:4182 WP No. 55692 of 2017 under hereinabove, 853 days. Nothing is on record that in between any notice was given to the defendant to execute the sale deed as per the judgment and decree on deposit of the balance sale consideration. The application filed by the plaintiff Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time to deposit the balance sale consideration was hopelessly delayed. As Section 28 of observed the Specific Relief Act seeks to provide complete relief to both the parties in terms of a decree of specific performance. Therefore, the trial Court failed to exercise the discretion judiciously in favour of the defendant and erred in exercising the discretionary power in favour of the plaintiff, that too with a delay of 853 days. The High Court has erred in confirming revision the applications. Under the circumstances, the order passed by the trial Court allowing the application being the I.A.No.732/2016 seeking extension of time to deposit the balance sale consideration deserves to be dismissed and I.A.No.914/2017 filed by the defendant - appellant under Section 28 of the Specific Relief Act to rescind the agreement to sell dated 9.5.2012 deserves to be allowed.” same and dismissing plaintiff the of 6. Relying on these judgments, learned counsel submits that the trial Court had erred in dismissing the application filed by the judgment debtor under Section 28 of the Specific Relief Act. 7. Learned Senior counsel appearing for the decree holder submits that the decree holder is the brother-in-law of the judgment debtor. As per the case of the plaintiff, an - 10 - NC: 2025:KHC:4182 WP No. 55692 of 2017 amount to an extent of 1 acre and 30 guntas where the defendant has agreed to sell for an amount of Rs.30,000/- way back on 02.05.1989 itself and an amount of Rs.25,000/- is paid. The remaining amount that needs to be paid is Rs.5,000/- . The judgment and decree is silent with regard to the balance sale consideration and when it has to be paid. The suit was decreed with cost of Rs.3,158/- and the appeal was dismissed with cost of Rs.1,149/-. If both these amount are paid, what is left is Rs.5,000/- is Rs.693/-. 8. Learned Senior counsel has drawn the attention of the Court to Section 28 of Specific Relief Act and learned Senior counsel submits that as per that section, firstly, there should be a stipulated time, which is not present in this case and secondly, the relief of specific performance which is an equitable relief and the Court has to look at the conduct of the parties having executed an agreement of sale in the year 1989. In the year 1992, he sells the property in favour of his wife and after the suit is filed, wife sells the property in favour of sons and sons in turn sells property in favour of third parties and those third parties have filed an application under Order 21 Rule 97 of CPC in the execution and those petitions have taken - 11 - NC: 2025:KHC:4182 WP No. 55692 of 2017 a lot of time, both I.As are dismissed and in respect of one objector, RA.No.50/2013 filed by them is dismissed. 9. It is submitted that all these things demonstrate the conduct of the defendant and during the pendency of the suit one after the other, the sales have taken place and when he has no interest in the property where his wife and children have sold the properties in favour of third parties, he comes up with an application under Section 28 of Specific Relief Act to rescind the contract. 10. It is submitted that the Court has to look at the conduct and in terms of justice he is not entitled for any relief. It is submitted that the judgments that are relied on by the learned counsel for the petitioners do not apply to the facts and circumstances of the case and further in those cases, it is an exparte decree and further the finding of the Court supports the case of the decree holder. In those cases where balance sale consideration is substantial amount, whereas in this case, it is only Rs.693/- and for an amount of Rs.693/-, the contract cannot be rescinded. - 12 - NC: 2025:KHC:4182 WP No. 55692 of 2017 11. Having heard the learned counsel for the petitioners, learned Senior counsel for the respondents and perused the entire material on record. The admitted facts in this case are, the suit was decreed on 30.11.1998 and against that, appeal was preferred and that is dismissed on 13.07.2005. No time frame is fixed in the judgment and decree for paying the balance sale consideration, then execution petition is filed on 20.03.2006, even on 20.03.2006, the plaintiff being the decree holder has not paid the remaining sale consideration and he has filed the execution petition, then for seeking rescission of the contract on 24.11.2014 an application is filed by the defendant/JDR. Even at that point of time, amount that is due i.e., part of the sale consideration is not paid by the decree holder. 12. It is submitted before this Court during the course of argument that in the year 2018, memo is filed that they are ready to deposit the remaining sale consideration. The argument of the learned Senior counsel that as the decree is silent and as there is no specific time, Section 28 of the Specific Relief Act is not attracted. On that submission, this Court is not - 13 - NC: 2025:KHC:4182 WP No. 55692 of 2017 able to appreciate and it has no legs to stand. Just because, the decree is silent about the time line for payment of balance of sale consideration that does not mean that the decree holder eternally will wait and will not deposit the amount. Even when an application is filed for rescission of the contract, even at that point of time also, the decree holder is not even vigilant and he has not even taken steps to pay the amount, whether it is substantial amount or it is meager amount, duty is cost upon the decree holder to pay the amount to show his bonafide and then he can seek for execution of the judgment and decree. 13. As such, this Court is not able to appreciate the said submission made by the learned Senior counsel on behalf of the decree holder. Then coming to the contention about the conduct of the defendant, the Courts have concurrently held that the defendant has received the amount and executed the agreement. In such case, after receiving the sale consideration, the plaintiff has executed the registered sale deed in favour of his wife and wife in turn to the children, children in turn executed the sale deeds in favour of third parties and third parties filed claim petitions before the Executing Court. - 14 - NC: 2025:KHC:4182 WP No. 55692 of 2017 14. The relief of specific performance being an equitable relief, the conduct of the parties assumes significance. When the defendants have nothing to do with the property and when they sold the property by way of several transactions, how they are interested with the present execution and how they are filing the applications one after the other shows the conduct of the judgment debtor. Looking at the application under Section 28 of the Specific Relief Act and looking at the amount of Rs.693/- and the conduct of the defendant, this Court is of the view that the application filed by the defendant cannot be entertained. Accordingly, the following
Decision
ORDER 1. The writ petition is dismissed. 2. All the I.As., if any, shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE PB List No.: 1 Sl No.: 4