Oorvasi and Others vs E. Thangaraj and Others

R.S. Ramanathan, J.—The defendants in O.S. No. 406 of 1986 on the file of the Sub-Court, Bhavani are the revision petitioners. The first

and second respondents have filed the above O.S. No. 406 of 1986 against the revision petitioners and three others for specific performance of an

agreement of sale dated 16.9.1986. In that suit, the Ist respondent was the 2nd plaintiff. The suit was decreed as prayed for on 23.7.1990 and the

plaintiffs were directed to pay the balance sale consideration of Rs. 2,00,000/- within two months from the date of the decree to the defendants to

get the sale deed executed, failing which the plaintiffs were directed to deposit the same before the court within a period of two months thereafter

and to get the sale deed executed through court. Therefore, the plaintiffs deposited the amount in court. The first defendant filed an appeal in A.S.

No. 806 of 1991 on the file of this Court and an interim stay was granted. The plaintiffs were permitted to withdraw the amount deposited in the

court and they were also permitted to re-deposit the amount in the court if the appeal is dismissed ultimately. During the pendency of the appeal the

defendants sold an extent of 870 3/4 sq.ft to the LRs of the first plaintiff and also executed another sale deed in respect of 3887 sq.ft. to the LRs

of the third plaintiff out of the suit schedule property on 14.6.2005. Therefore, during the pendency of the first appeal an extent of 4857 3/4 sq.ft

out of the total extent of 6885 was sold in favour of the LRs of the plaintiffs 1 and 3 by the defendants. Thereafter, the first appeal was dismissed

on 15.12.2006 on the basis of the representation made by the appellant that the matter was settled between the parties. Thereafter, the second

plaintiff filed R.E.P. No. 109 of 2007 for executing the sale deed in respect of the remaining extent by depositing the proportionate amount of Rs.

61670/- and in that application the revision petitioners filed R.E.A. No. 6 of 2009 u/s 28(1) of the Specific Relief Act read with Section 47 of

CPC contending that the decree passed in O.S. No. 406 of 1986 is liable to be rescinded as the second plaintiff had not deposited the sale

consideration within a period of two months from the date of the disposal of the first appeal; that he has not sought for extension of time for

depositing the amount after the expiry of two months and that the prayer in the execution petition cannot be considered as the suit is one for

specific performance of agreement for a total extent of 6885 sq.ft. and in the execution petition, the second plaintiff prayed for a sale of 4/15 share

in the suit property, as the decree is indivisible. The learned Magistrate dismissed the application and aggrieved by the same this revision is filed.

It is submitted by Mr. R. Subramanian, learned counsel for the revision petitioners submitted that admittedly the plaintiffs filed the suit for specific

performance of agreement of sale having an extent of 6885 sq.f.t. and the decree is indivisible and the second plaintiff cannot ask for execution of

sale deed in respect of 4/15 share in the suit schedule property and therefore, the decree cannot be executed in the manner as sought for by

second plaintiff. He further submitted that u/s 28(1) of the Specific Relief Act the court has got power to rescind the contract, if the sale

consideration was not paid within the period allowed by the decree.

In this case admittedly the second plaintiff deposited the sale consideration of Rs. 61670/- for 4/15 shares in the suit property after a lapse of

seven months into the court and as per the decree, the amount ought to have been deposited within two months and without seeking extension of

time for depositing the amount, the deposit made by the second plaintiff is beyond the period prescribed by the court and therefore, the decree is

liable to be rescinded. I am unable to accept the contention of the learned counsel for the revision petitioners.

Admittedly the first appeal was dismissed on the basis of the submissions made by the appellant namely the first defendant that the matter was

settled between the parties. Learned counsel for the revision petitioners is not in a position to give particulars about the settlement arrived at

between the parties. Even prior to the disposal of the first appeal the defendants executed two sale deeds dated 14.6.2005, one in respect of 870

3/4 sq.ft to the LRs of the Ist plaintiff and another sale deed to the LRs of the 3rd plaintiff in respect of the extent of 3887 sq.ft. Therefore, before

the first appeal was disposed of, an extent of 4857 3/4 of land was sold by the revision petitioners to the LRs of the Ist and 3 plaintiffs. The

remaining extent available is 2028 sq.ft. Therefore, in the execution petition filed by the second plaintiff, he sought for execution of the sale deed in

respect of the remaining extent of the property in his favour and he also deposited the proportionate sale consideration.

No doubt in the decree it is not stated that each plaintiff is entitled to a specified extent. Nevertheless, having regard to the extent of property

conveyed by the defendants in favour of the LRs of the Ist and 3rd plaintiffs, the second plaintiff has submitted that the properties conveyed to the

LRs of the Ist and 3rd plaintiff would constitute 11/15 share and he is entitled to remaining 4/15 share and sought for execution of sale deed in

respect of 4/15 share. Therefore, it cannot be contended that second plaintiff is not entitled to claim 4/15 share. As already stated after taking

possession of the land sold by the defendants in favour of the LRs of the first and third plaintiffs, the second plaintiff sought for execution of

remaining extent of land, in my opinion, he is entitled to ask for execution of sale deed in respect of remaining extent and that was rightly

considered by the court below and dismissed the application filed by the revision petitioners.

The other grounds raised by the learned counsel for the revision petitioners is that u/s 28(1) of specific relief Act, when the sale consideration

was not paid within the period prescribed by the court, it is open for the defendants to apply to the court to have the contract rescinded and on

such application is made, the court has to rescind the contract. In my opinion a discretion is given to the court to rescind the contract, if there is any

default in payment of balance sale consideration. In this case, admittedly the balance sale consideration of two lakhs was deposited by the plaintiffs

immediately after the decree was passed and having regard to the stay obtained by the first respondent in the first appeal, the amount was allowed

to be withdrawn by the plaintiffs and after the first appeal was disposed of by this court on the basis of submissions made by the appellant that the

matter was settled out of court, the E.P. was filed after a delay of seven months. The delay of seven months in depositing the balance sale

consideration will not help the revision petitioners to seek the relief of cancellation of the decree for reasons stated supra. Sale deeds were

executed by the defendants in respect of 4858 sq.ft of land even before the dismissal of the first appeal and the second plaintiff is entitled to the

remaining extent. Accordingly he has filed E.P. For execution of sale deed in respect of remaining extent. Considering all these, the court below

dismissed the application filed by the revision petitioners and I do not find any reason to interfere with the well considered order passed by the

court below. I do not find any merit in this revision petition. Revision petition is dismissed. No costs. Consequently the connected M.P. No. 1 of

2011 is also dismissed.