Gurdeep Singh v. Suresh Chander & Anr.

CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. K. S. Dhillon, Advocate for the petitioner. Mr. Tribhawan Singla, Advocate for respondent No. 1. .. Rajesh Bindal J. The judgment-debtor is before this court against the order dated

14.1.2010, passed by the learned court below, whereby direction was given for filing of draft sale deed on deposit of sale consideration, as directed by the court below while passing the judgment and decree dated 20.5.2008 in favour of respondent No. 1-plaintiff in a suit for possession by way of specific performance of agreement to sell. Briefly, the facts are that respondent no.1-plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 30.12.1997, which was decreed by the trial court vide judgment and decree dated 20.5.2008. In terms of the decree, respondent No.1-plaintiff was directed to deposit the balance sale consideration of Rs. 2,18,750/- in court within a period of one month from the date of decree. It is after the passing of the aforesaid decree that respondent No. 1- plaintiff filed execution application and deposited the balance sale consideration on 20.6.2008. Finding the same to be within time granted by the court, the learned court below vide impugned order directed filing of draft sale deed. It is against this order that the petitioner-judgment debtor is before this court. Learned counsel for the petitioner submitted that the trial court while passing the judgment and decree against the petitioner on 20.5.2008 had directed Civil Revision No. 928 of 2010 [2] for deposit of balance sale consideration by respondent No.1-plaintiff within 30 days therefrom. However, in spite of the amount having been deposited on

20.6.2008, which was clearly beyond 30 days from the date of judgment and decree, still the learned court below opined the same to be within time. He fairly stated that though judgment and decree of the trial court has been upheld by the learned lower appellate court but the petitioner is in the process of filing appeal against the judgment and decree of the learned lower lower appellate court. He further submitted that even in terms of Section 28 of the Specific Relief Act, 1963, it is only the court passing the decree, which could possibly grant extension of time for deposit of the amount. In the present case, it is not in dispute that respondent No. 1-plaintiff did not move any application before the court passed the decree seeking extension of time for deposit of the balance sale consideration. In the absence thereof, the order passed by the learned court below is certainly beyond jurisdiction and deserves to be set aside. He further submitted that the executing court could not go behind the decree and enlarge the time granted by the court while passing the decree, as the executing court was required to execute the decree, as passed. For the purpose, reliance was placed upon C. Gangacharan v. C. Narayanan, 2000(1) RCR (Civil) 686 and M/s Harbans Lal Raj Rishi v. M/s Lachhman Dass Rajesh Kumar, 2003(3) PLR 77. On the other hand, learned counsel for respondent No. 1-plaintiff submitted that the at most, if calculated, there is delay of merely one day in deposit of the balance sale consideration. He further submitted that even the first appeal filed by the petitioner impugning the judgment and decree of the trial court had been dismissed on 5.3.2010 and respondent No. 1-plaintiff having deposited the amount in the court should not be deprived of the fruits of the decree merely on account of delay of one day as the time for deposit of the money could very well be extended by the court. The delay of one day in deposit of the amount was not deliberate. Reliance was placed upon Sardar Mohar Singh through Power of Attorney Holder, Manjit Singh v. Mangilal @ Mangtya, 1997(2) RCR (Civil) 296 and Chanda (dead) through LRs v. Rattni and another, 2007(2) RCR (Civil) 534. Heard learned counsel for the parties and perused the paper book. The legal position that the executing court cannot go behind the decree except in certain exceptional cases is not in dispute. Another position of law is not in dispute that the court, which passes the decree for specific performance, has the jurisdiction to enlarge the time granted for payment of balance sale consideration. This issue was dealt with by Hon'ble the Supreme Court in Chanda's case (supra) and opined that the court can always extend the Civil Revision No. 928 of 2010 [3] time for deposit of balance sale consideration while exercising the discretion. Paragraph 9 thereof is extracted below: “9. The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the court cannot ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. The court does not cease to have the power to extend the time even though the trial court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit to stand dismissed. The power exercisable under this Section is discretionary.” To the similar effect is the earlier judgment of Hon'ble the Supreme Court in Sardar Mohar Singh's case (supra). There also, it was opined that the court has the discretion to extend time for compliance of the conditional decree, as mentioned in the decree for specific performance. In that case, the facts were quite similar to the case in hand, where the executing court had extended the time. The order having been impugned before the High Court, the judgment-debtor was granted further amount as compensation on account of loss of enjoyment of money for the period the deposit of amount was delayed. In view of the aforesaid legal position, in my opinion, even if there is delay of one day in deposit of the amount of balance sale consideration in court, the same is condoned by this court as remitting the matter back to the learned court below will compound the miseries of the parties, once it is not in dispute that such an execution could be granted. However, as the facts on record establish that respondent No. 1-plaintiff was required to deposit the amount of balance sale consideration of Rs. 2,18,750/- on or before 19.6.2008 and the amount was deposited by him in court on 20.6.2008 is still lying there and on account of that fact the petitioner has been deprived of enjoyment of that money for this period of about one year and 10 months, he deserves to be compensated for the same. Assessing the loss to that effect, I deem it appropriate to award Rs. 50,000/- to the petitioner on that account in lump sum. The amount shall be paid by respondent No. 1-plaintiff to the petitioner on or before 31.5.2010. However, it is made clear that the present order shall not prejudice the case of the petitioner in the appeal, if any, filed by him as the merits thereof are not being considered in the present petition. Civil Revision No. 928 of 2010 [4] The petition stands disposed of in the manner indicated above.

28.4.2010 (Refer to Reporter)` (Rajesh Bindal) Judge