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Judgment
This Miscellaneous Appeal under Order XLIII Rule 1 (i) of CPC has been filed against the order dated 26/9/2018 passed by the Executing Court (ADJ, Mungawali, District Ashoknagar) in Execution Case No.4-A/03/04, by which the application filed by the appellant under Order XXI Rule 34 of CPC has been rejected.
The present appeal depicts a very sorry state of affairs, where the decree for specific performance of contract, which was passed in the year 2004, has still remained unexecuted.
The necessary facts for disposal of the present appeal in short are that the respondents filed a suit for specific performance of contract against the appellant and the State on the ground that the appellant had entered into an agreement to sell the land bearing survey no.224 area 0.554 hectare situated in Kasba Range Mungawali, District Ashoknagar alongwith two rooms constructed over it.
The appellant filed his written statement and rebutted the plaint averments.
The said civil suit was decreed by judgment and decree dated 11/8/2004 and the following decree was passed:-
1- izfroknh dz- 1 dks vkns'k fn;k tkrk gS fd og dLck jsat eqaxkoyh fLFkr losZ dzekad 224 jdck&0-554 gS-Hkwfe vkSj ml ij cus nks iDds dejksa dk fodz;i= vo'ks"k&75]000@&¼fipgRrj gtkj :i;s½ izfrQy vkSj oknhx.k }kjk ns; jftLVªh [kpsZ ij oknhx.k ds Ik{k esa laikfnr dj fodzhr laifRr dk dCtk oknhx.k dks varfjr djsA
2- rhu ekg ds vanj mijksDrkuqlkj fodz;i= laikfnr u djus ij oknhx.k U;k;ky; ds ek/;e ls vo'ks"k izfrQy U;k;ky; esa tek dj fodz; i= laikfnr djkus ds vf/kdkjh gksaxsA
3- izfroknh dz-1 vius lkFk&lkFk oknhx.k dk okn O;; Hkh ogu djsxkA vfHkHkk"kd 'kqYd izekf.kr gksus ij fu/kkZfjr rkfydk dh lhek rd ekU; fd;k tkrk gSA
On 3/12/2004, the respondents filed an application for execution of the decree before the Executing Court. Thereafter, the siblings and other relatives of the appellant filed a civil suit seeking declaration of their title over the said disputed land, which was the subject matter of agreement to sale. The said civil suit was dismissed, against which, a first appeal was filed, which too was dismissed. The second appeal was filed before this Court, which was registered as SA No.582/2005, which too was dismissed by order dated 14/8/2006 and ultimately, SLP (Civil) No.3973 of 2007 was dismissed by the Supreme Court by order dated 28/8/2009. Thereafter, an application under Order XXI Rule 97 of CPC was filed by the siblings and other relatives including the mother of the appellant, who had earlier filed the suit for declaration of title. The said application was rejected by the Court by order dated 8/4/2010, against which, first appeal was filed. In the first appeal, interim order was passed. The first appeal was ultimately dismissed by this Court by judgment dated 18/4/2016 passed in First Appeal No.100/2010. It appears that after the dismissal of first appeal the appellant filed an objection before the Executing Court alleging inter alia that the draft sale deed was filed in the Executing Court on 13/8/2016, on which objections were invited and accordingly, the objections are being submitted under Order XXI Rule 34 of CPC. It was stated in the objection that according to the decree, the plaintiffs/respondents were directed to get the sale deed executed within a period of three months after making payment of Rs.75,000/- and since the respondents have not deposited the amount of Rs.75,000/-, therefore, now the decree is not executable. It is further submitted that the decree was passed in the year 2004 and now the execution proceedings are barred by limitation. Again it was objected that the land in question was not the self acquired property of the appellant, but it was the ancestral property.
Per contra, it was submitted by the respondents that the execution proceedings are not barred by limitation.
The Executing Court by order dated 26/9/2018 rejected the objections filed by the appellant.
Challenging the order dated 26/9/2018 passed by the Executing Court (ADJ, Mungawali, District Ashoknagar), it is submitted by the counsel for the appellant that as the remaining consideration amount of Rs.75,000/- was not paid by the plaintiffs/respondents within a period of three months, therefore, the contract had stood rescinded as per the provisions of Section 28 of the Specific Relief Act and secondly the application for execution of decree is barred by limitation, as the application was not filed within a period of 12 years from the date of passing of the decree.
Per contra, it is submitted by the counsel for the respondents that the decree was passed on 11/8/2004 and the application for execution of the decree was filed on 3/12/2004, i.e. within a period of four months from the date of passing of the decree and because of various litigation, which were instituted by the siblings and other relatives of the appellant and in view of the fact that there were interim orders in those litigation, decree could not be executed and the execution application, which was filed on 3/12/2004 remained pending and where the appellant or his relatives themselves are responsible for causing delay in execution of the sale deed in compliance of the decree, then it cannot be said that the application for execution of decree is barred by limitation. It is submitted that the period of limitation would be counted from the date of filing of the application only and not otherwise.
Heard learned counsel for the parties.
So far as the contention raised by the counsel for the appellant that execution proceedings are delayed and barred by limitation is concerned, the same is misconceived. The judgment and decree in Civil Suit No.4A/2003 was passed on 11/8/2004 and undisputedly the application for execution of the decree was filed by the respondents/plaintiffs on 3/12/2004, i.e. within a period of four months and thus, by no stretch of imagination it can be said that the application filed by the respondents for execution of the decree was barred by limitation. Merely because the relatives of the appellant succeeded in keeping the application pending by instituting various litigation and obtaining interim orders, then it cannot be said that now the application has become barred by limitation. Accordingly, the objection raised by the counsel for the appellant, that the application for execution of the decree is barred by limitation, is rejected as misconceived and devoid of merits.
It is next contended by the counsel for the appellant that as per the decree awarded by the trial court, the plaintiffs/respondents were under an obligation to deposit the amount of Rs.75,000/- within a period of three months and since the said amount has not been deposited, therefore, the Executing Court has committed a mistake by extending the period and without there being any application, the period for depositing the consideration amount cannot be extended. It is further submitted that since the consideration amount has not been deposited within a period of 12 years, therefore, the decree has become barred by limitation.
Considered the submissions made by the counsel for the parties.
The decree, which was passed by the trial court in Civil Suit No.4A/2003, has already been reproduced. According to the decree, the appellant was directed to execute the sale deed within a period of three months after receiving the consideration amount of Rs.75,000/- and registration expenses and it was further directed that in case if the sale deed is not executed within a period of three months, then the plaintiffs can get the sale deed executed after depositing the amount in the Court.
Section 28 of the Specific Relief Act reads as under:-
"28 - Rescission in certain circumstances of contracts for the sale or lease 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 lessee as earnest money or deposit in connection with the contract.
(3) If the purchaser 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."
By relying on the judgment passed by the Supreme Court in the case of V.S. Palanichamy Chettiar Firm v. C. Alagappan and another reported in AIR 1999 SC 918 it is submitted by the counsel for the appellant that since the execution of the decree is being sought after 12 years and the consideration amount has not been deposited so far and no explanation has been given by the plaintiffs for not depositing the consideration amount at the earliest, therefore, the time cannot be extended under Section 28 of the Specific Relief Act.
The submission made by the counsel for the appellant is misconceived. As already pointed out that immediately after the decree dated 11/8/2004 was passed, the siblings and other relatives of the appellant filed a suit for declaration of title in respect of the land in dispute, which went upto the Supreme Court and the SLP was dismissed by the Supreme Court by order dated 28/8/2009 passed in SLP (Civil) No.3973 of 2007 and thereafter, the siblings and other relatives of the appellant filed an application under Order XXI Rule 97 of CPC, which was dismissed and against which, First Appeal No.100/2010 was filed before this Court and the said first appeal was dismissed by judgment dated 18/4/2016 by this Court. Thus, it is clear that from the date of the decree, i.e.11/8/2004, till 18/4/2016 all sorts of legal hurdles were created by the siblings and other relatives of the appellant on one ground or the other and obtained the interim orders. Once there was a legal impediment before respondents and they were not entitled to get the decree executed in the form of execution of sale deed, then the contention made by the counsel for the appellant, that although the respondents were not entitled for execution of the sale deed in view of the interim orders passed by different courts at different stages, but still the respondents were under an obligation to deposit the consideration amount, cannot be accepted.
Section 55 of the Transfer of Property Act reads as under:-
"55. Rights and liabilities of buyer and seller. - In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:
(1) The seller is bound-
(a) to disclose to the buyer any material defect in the property [or in the seller's title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.
(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:
Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller's possession or power:
Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and,
(b) where the whole of such property is sold to different buyers, the buyers of the lot of greatest value is entitled to such documents.
But in case (a) the seller, and in case
(b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts there from as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, unconcealed and undefaced, unless prevented from so doing by fire or other inevitable accident.
(4) The seller is entitled-
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, [any transferee without consideration or any transferee with notice of the non-payment], for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part [from the date on which possession has been delivered].
(5) The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the seller's interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs:
Provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.
(6) The buyer is entitled-
(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.
An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a) and paragraph (5), clause (a), is fraudulent."
Clause (d) of Section 55 (1) of the Transfer of Property Act clearly provides that ordinary rule of law is that the payment of sale consideration is simultaneous act with the execution of sale deed. There is nothing in the decree which had required the respondents to deposit the entire consideration amount irrespective of the fact that whether the sale deed could have been executed or not. In absence of any contrary direction requiring the respondents to deposit the remaining consideration amount before the Trial Court/Executing Court irrespective of any legal impediment, it cannot be said that there was any delay on the part of respondents/plaintiffs in depositing the consideration amount before the Trial Court/Executing Court. The Supreme Court in the case of Kumar Dhirendra Mullick v. Tivoli Park Apartments (P) Ltd., reported in (2005) 9 SCC 262, has held as under :
"34. Applying the above tests to the facts of the present case, the decree in question is not a self-operative final decree. It is a preliminary decree. It merely directs the trust to execute the lease on or before 24-10-1985. It does not prescribe any consequence of non-deposit of premium. It does not prescribe any consequence of non-tender of rent on or before 24-10-1985. Till date, the decree-holder has paid the premium of Rs 30 lakhs. It has paid rent amounting to Rs 96 lakhs. In the circumstances, it cannot be said that the decree-holder intended to abandon the contract dated 16-8-1980. There is no positive refusal on the part of the respondent to complete the lease. There is no explanation given by the trust for not moving the application for rescission of the contract for nine years. The decree was passed on 25-7-1985 whereas the application for rescission of the agreement is dated 3-10- 1994. As stated above, the trust did not lead the evidence in Suit No. 176 of 1981. The corresponding Suit No. 87 of 1981 filed by the trust was dismissed for non-prosecution. The trust moved under Order 9 Rule 13 CPC for setting aside the decree dated 25-7-1985. That application was dismissed for default vide order dated 1-8-1987. The trust moved the application for restoration which was also dismissed for default on 16-7-1988. The trust moved in appeal against the decree dated 25-7-1985. That appeal was also dismissed. The decree-holder has referred to the entire correspondence between the parties which indicates that during this period of nine years in the guise of negotiations, the decree-holder was prevented from filing execution application. The decree-holder was repeatedly assured of settlement. The decree-holder was repeatedly assured that lease would be executed in its favour. Attempt was also made by the trustees during the interregnum to lease the property to Dilip Chand Kankaria and Smt Sudha Kankaria. Lastly, in the present case, the decree-holder was put in possession under the deed of assignment dated 20-8-1970. The respondent was not put in possession under the agreement dated 16-8-1980. In the circumstances, the trial court erred in directing rescission of the said agreement dated 16-8-1980. For the aforestated reasons, we do not find any merit in this appeal."
In the present case, there was no direction by the Trial Court to deposit the consideration amount within a specified period. On the contrary, the direction was to the appellant to execute the sale deed within a period of three months from the date of the decree, otherwise, the decree holder was entitled to get the sale deed executed through the Court. It is not the case of the appellant that he was ready and willing to execute the sale deed, but the respondents did not tender the remaining consideration amount and the registration charges. On the contrary, it appears that when the appellant did not execute the sale deed, then immediately after the expiry of three months, the respondents moved an application for execution of the decree. Thus, it cannot be said that the respondents had abandoned the contract. It is also not out of place to mention here that a suit was filed by the relatives of the appellant seeking declaration of their title and after losing the suit, even from the Supreme Court, an application under Order XXI Rule 97 of C.P.C. was filed and thereafter, the First Appeal was filed before the High Court, which remained pending till 18-4-2016. Thus, it is clear that all sorts of legal hurdles were created in order to avoid the execution of the decree. From the facts and circumstances of the case, it is clear that in fact the appellant never appeared before the Trial Court and only after exhausting all remedies by his relatives, he came forward and submitted objections to the draft sale deed. In the present case, it is an admitted position that now the respondents have already deposited the entire consideration amount with the Court. Thus, it is held that neither the application for execution of the decree is barred by time nor the contract has rescinded under Section 28 of Specific Relief Act.
Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the Trial Court /Executing Court did not commit any mistake in rejecting the objections made by the appellants by its order dated 26-9-2018.
Accordingly, this appeal fails and is hereby Dismissed.