Single judge bench dismissed revision petition against order allowing execution of sale deed after deposit of amount by plaintiff with Court permission. Court found coordinate bench order bars fresh objections on maintainability of execution proceedings.
Revision petition dismissed; impugned order dated 17.09.2019 upheld.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
S.B. Civil Revision Petition No. 165/2019
Mangilal Soni S/o Ganesh Lal Soni, Aged About 85 Years, R/o 13 Lal Ghat Marg, District Udaipur, Through His Power Of Attorney Holder Shri Dinesh Soni S/o Mangilal Soni, Aged About 47 Years R/o 13, Lal Ghat Marg, District Udaipur.
----Petitioner
Versus
Suresh Chandra Swarnkar S/o Krishna Ji Swarnkar, R/o Lal Ghat Marg, Udaipur (Raj.).
----Respondent
For Petitioner(s) : Mr. Rajat Dave.
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
18/11/2019
Heard learned counsel for the petitioner.
The present revision petition has been filed challenging the order dated 17.09.2019 passed by learned Additional District Judge No.1, Udaipur in Case No.05/2007 (Original Suit No.26/1985) -CIS No.509/2014.
The counsel for the petitioner has fairly submitted that against the multiple issues decided vide order dated 17.09.2019, a revision petition being S.B.Civil Revision Petition No.141/2019 (Mangi Lal Soni V/s Suresh Chandra Swarnkar) was preferred and the same has been decided by this court vide order dated 08.11.2019 wherein brief facts and contents of the order dated 17.09.2019 have been elaborately dealt with.
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[CR-165/2019]
Brief facts giving rise to this revision petition are that a suit for specific performance of the contract came to be filed by the respondent-decree holder which was registered as original Suit No.26/85 and the same was decreed by the trial Court vide its judgment and decree dated 03.04.1987 with a direction to the respondent-decree holder to make payment of remaining amount to petitioner-defendant of Rs.50,000/- within two months, whereupon the petitioner-defendant shall execute the sale deed in favour of respondent-plaintiff. On failure of defendant to do so, the plaintiff would deposit the amount in the Court of ADJ, Udaipur and get the sale deed executed through the Court. Being aggrieved against the judgment and decree dated 03.04.1987, the petitionerdefendant preferred an appeal before this Court bearing S.B. Civil First Appeal No. 42/1987, wherein initially an interim order was passed by this Court but subsequently, the said first appeal came to be dismissed on 12.02.2007.
The respondent-plaintiff, thereafter, filed an application under Order 21 Rule 34 and 32 read with Section 151 CPC before the trial Court on 02.07.2007 seeking execution of the sale deed and mentioning therein that the remaining sale amount of Rs.50,000/- is being deposited through the challan, therefore, necessary permission may be granted to deposit the said amount. The trial Court on 03.07.2007, ordered for depositing of the sale amount of Rs.50,000/-. Thereafter, on 04.07.2007, the sale amount of Rs.50,000/- was deposited by the respondent-plaintiff in the Court. On 22.11.2008, the petitioner-defendant filed reply to the application preferred by the respondent-plaintiff under Order 21 Rule 34 CPC denying the averments made in the said application. It was further averred that the remaining sale amount was not deposited by
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the respondent-plaintiff as per the direction given by the trial Court vide judgment and decree dated 03.04.1987. Thus, the respondentplaintiff is not entitled to deposit the said amount. Even, if, the said amount has been deposited in the Court, the same is not in pursuance of the direction given by the trial Court vide its decree dated 03.04.1987. Hence, the respondent-plaintiff is not entitled to get the decree executed and prayer was made to dismiss the application under Order 21 Rule 34 CPC.
Thereafter, respondent-decree holder filed an application before the trial Court on 01.12.2008 with a prayer that the sale amount deposited in the Court on 04.07.2007 be treated within the time limit which was deposited after obtaining permission from the Court vide its order dated 03.07.2007. Reply to the said application dated 01.12.2008 was submitted by the petitioner- judgment debtor. Thereafter, on 28.01.2013 another application under Order 7 Rule 11 CPC and Section 28 of the Specific Relief Act was filed by the petitioner-judgment debtor for rescinding the contract.
It is borne out from the perusal of the record that the Court below deemed it proper to take evidence of parties for deciding the issue/dispute between the parties on 04.02.2009. Thereafter, on 25.02.2015, the Court below recalled the order dated 04.02.2009, whereby, evidence of both the parties was ordered to be recorded. After hearing both the parties, the Court below dismissed the application filed by the petitioner under Order 7 Rule 11 CPC and Section 28 of the Specific Relief Act and the application dated 01.12.2008 submitted by the respondent-decree holder was allowed and it was held that the sale amount deposited by the respondentdecree holder was deposited with the permission of the Court which tantamount to extension of time by the Court. The application filed
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by the respondent-decree holder under Order 21 Rule 34 CPC was also allowed and the petitioner- judgment debtor was directed to execute the sale deed of the disputed property. Feeling aggrieved, the instant revision petition has been filed by the petitionerdefendant challenging the impugned order dated 17.09.2019.
The core question in the present case is that the time of two months granted by the original decree dated 03.04.1987 for deposition of the amount was extended by the learned trial court vide order dated 03.07.2007. Since this court vide order dated 08.11.2019 while dealing with the issues raised before it rejected the revision petition, therefore, all the objections raised by learned counsel in an application preferred before the executing court under order 21 Rule 34 CPC with respect to the execution proceedings being not maintainable as the amount due was not deposited within the stipulated period fixed by the decretal court does not help the petitioner.
Having considered the submissions made at the bar and the order dated 08.11.2019 passed by coordinate bench of this court in the case of Mangi Lal Soni (supra), this court is not inclined to interfere in the order dated 17.09.2019 passed by the learned trial court.
Consequently, the revision petition filed by the petitioner is dismissed being bereft of merit.
(VINIT KUMAR MATHUR),J
60-Anil Singh/-
2 issues framed by the court
Whether this High Court should interfere with the order dismissing the revision petition challenging the execution proceedings.
Whether the execution of sale deed was maintainable when the payment was deposited after the stipulated period with court permission.
3 provisions across 2 enactments
Mangilal Soni
Suresh Chandra Swarnkar
VINIT KUMAR MATHUR
As recorded by the court registry
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