Writ Petition No. 3952 of 2008. Case: Khoobiram Vs Smt. Urmila Chouhan and Ors.. High Court of Madhya Pradesh (India)
| Case Number | Writ Petition No. 3952 of 2008 |
| Judges | S.K. Gangele and Abhay M. Naik, JJ. |
| Issue | Specific Relief Act, 1963 - Sections 28 and 28(1); Specific Relief Act, 1877 - Section 35; Civil Procedure Code (CPC) - Sections 47 and 151; Civil Procedure Code (CPC), 1908 - Order 9, Rule 13 - Order 20, Rules 6 and 7 - Order 26, Rule 9; Constitution of India - Article 227 |
| Citation | AIR 2010 MP 211 |
| Judgement Date | May 19, 2010 |
| Court | High Court of Madhya Pradesh (India) |
Order:
Abhay M. Naik, J., (Gwalior Bench)
1. This petition under Article 227 of the Constitution of India has been preferred against the order dated 30-4-2008 passed by the Court of I Vth Additional District Judge, Gwalior, in Execution Case No. 1A/2000X03X07.
2. Briefly stated relevant facts are that on 5-11-92 Respondent Nos. 1 and 2 instituted Civil Suit No. 1A/2000 with allegations that the Defendant/Petitioner owned an agricultural land comprised in Survey No. 1031/1 min in area 0.355 hectare situated at village Girwai, Tahsil and District Gwalior (M.P.). He executed an agreement of sale dated 28-11-90 in favour of the Plaintiffs for a consideration at the rate of Rs. 32,500/- per bigha. Total consideration was to the tune of Rs. 55,250/-. He did not execute the sale deed in favour of the Plaintiffs despite there being readiness and willingness on the part of the latter. Instead, he executed registered sale deed dated 25-6-96 in favour of Defendant/ Respondent Nos. 3 and 4 for a consideration of Rs. 89,000/-. Plaintiff/Respondent Nos. 1 and 2 instituted Civil Suit No. 1A/2000 against Defendant/Petitioner and Respondent Nos. 3 and 4 for specific performance of agreement of sale and restoration of possession which was forcibly taken by Respondent Nos. 3 and 4 during pendency of the suit. Declaration was also sought that the registered sale-deed dated 25-6-96 is null and ineffective. After trial, learned Trial Judge vide judgment and decree dated 13-5-03 granted a decree in favour of the Plaintiffs. Defendant/Petitioner was directed to receive balance consideration in pursuance of the sale-agreement dated 28-11-90 and execute the registered sale deed in favour of the Plaintiffs. It was further directed that in case if Defendant/Petitioner fails to receive the balance consideration and execute the registered sale deed within a period of two months, Plaintiffs would be entitled to get the sale deed executed from the Court by way of execution.
3. Respondent Nos. 3 and 4 submitted First Appeal No. 188/03 against the aforesaid judgment and decree which was dismissed on 22-8-06 which was also upheld by the Apex Court on 14-3-07.
4. It is pertinent to note that since the decree against the Defendant/Petitioner was passed ex parte, an application under O. IX, Rule 13, Code of Civil Procedure was submitted which was dismissed by the trial Court on 23-11-07. Aggrieved by it, M.A. No. 208/08 was preferred which too, was dismissed by the Court on 3-3-2008.
5. Plaintiffs/decree-holders put the decree into execution and submitted draft sale-deed for being executed in their favour.
6. Defendant/Petitioner submitted objection that the balance consideration was neither paid to him by the decree-holders; nor was deposited by them in the Court. Moreover, the cost of litigation was deducted from balance of consideration. Therefore, execution is liable to be dismissed. Plaintiffs/decree-holders submitted their reply as revealed in Annexure P-4. Thereafter, the executing Court after hearing the arguments directed the decree-holder to deposit the balance money within one month by the impugned order dated 30-4-08 (Annexure P-1). Aggrieved by it, the Petitioner preferred present petition mainly on the ground that the decree-holders having failed to deposit the balance consideration within the stipulated period have no right to execute the decree. Time for deposit could not have been extended by the Executing Court in the absence of an application at the instance of the decree-holders.
7. Though the Plaintiffs/decree-holders did not submit return being matter of record, they submitted reply to the application for interim relief which is duly supported by an affidavit of Respondent No. 1. Allegations for dismissal of execution petition were refuted. Additionally, it has been stated that 12-1-09 was fixed by the Executing Court for delivery of possession when Respondent No. 3 and his brother committed murder of decree holder No. 2 on 10-1-09. Sessions Trial in respect of it is pending in the Court of Session's Judge, Gwalior.
This Court has requisitioned the record of F.A. No. 188/03, M.A. 208/08 and that of the execution proceedings.
8. We have perused the entire record. Main contention of Shri K.N. Gupta, learned Senior Advocate appearing for Defendant/ Petitioner, is that the decree-holders were directed to make deposit of the balance consideration within two months which was not complied with. No offer/tender was made by the decree-holders to the Defendant/Petitioner within a period of two months. Decree-holders despite failure on their part to make deposit within the stipulated period did not seek extension of time. Therefore, the objections of the Petitioner were liable to be accepted and the execution case ought to have been dismissed, since the contract in favour of the decree-holders was liable to be rescinded in view of Section 28 of the Specific Relief Act, 1963. Reliance by him is placed on a decision of the Apex Court in the case of Chanda (Dead) through L...
To continue reading
Request your trial
-
CRP Nos. 716 and 719 of 2013. Case: Kaniyattil Ummakulsumma Vs P. T. Vijayakumar. High Court of Kerala (India)
...has relied on the decision rendered by the Madhya Pradesh High Court in Khoobiram v. Urmila Chouhan and Ors. [2010 KHC 6784]: (AIR 2010 MP 211), which was a case wherein the judgment debtor was directed through the decree to receive the balance consideration and to execute the sale-deed wit......
-
CRP Nos. 716 and 719 of 2013. Case: Kaniyattil Ummakulsumma Vs P. T. Vijayakumar. High Court of Kerala (India)
...has relied on the decision rendered by the Madhya Pradesh High Court in Khoobiram v. Urmila Chouhan and Ors. [2010 KHC 6784]: (AIR 2010 MP 211), which was a case wherein the judgment debtor was directed through the decree to receive the balance consideration and to execute the sale-deed wit......