Dismissed

Subhash Chandra v. Arun Kumar

Rajasthan HC24 Apr 2024CR/90/2017

Case brief

AI extract

What is this about?

This revision petition challenged an order rejecting an application for rescission of a sale contract under Section 28 of the Specific Relief Act filed in execution proceedings. The High Court held that Section 28 requires applications to be made in the original suit, not execution proceedings, dismissing the petition.

What did the court decide?

The Civil Revision Petitions were dismissed, and stay petitions disposed of accordingly.

Subhash Chandra Vs Arun Kumar — Specific Performance | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 90/2017

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Subhash Chandra S/o Sh. Milakhraj Arora, Resident Of Gali No. 21, New Abadi, Hanumangarh Town, District Hanumangarh Raj.

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----Petitioner

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Versus

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Arun Kumar S/o Sh. Balram Jat, Resident Of Khileribas, Fatehgarh, At Present New Dhan Mandi, Hanumangarh Junction, District Hanumangarh Raj.

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----Respondent

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Connected With

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S.B. Civil Revision Petition No. 91/2017

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Mahendra Kumar S/o Sh. Banwari Lal Arora, Resident Of Kile Wali Road, Hanumangarh Town, District Hanumangarh Raj.

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----Petitioner

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Versus

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Arun Kumar S/o Sh. Balram Jat, Resident Of Khileribas, Fatehgarh, At Present New Dhan Mandi, Hanumangarh Junction, District Hanumangarh Raj.

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		----Respondent
For Petitioner(s)	: Mr. Sajjan Singh Mr. Prashant Tatia
For Respondent(s)	: Mr. Trilok Joshi

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Judgment

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DATE OF JUDGMENT: 24/04/2024

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S.B. Civil Revision Petition No. 90/2017

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The present Civil Revision Petition under Section 115 of the CPC has been preferred by the petitioner-judgment debtor against the order dated 01.04.2017 passed by the learned Additional District Judge No. 1, Hanumangarh (hereinafter referred to as the

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learned Appellate Court) in Civil Misc. Appeal No. 24/2016, whereby the learned Appellate Court rejected the appeal. The order dated 31.08.2016 passed by the learned Additional Senior Civil Judge, Hanumangarh (hereinafter referred to as the learned Executing/trial Court), whereby the learned Executing Court rejected the application filed by the petitioner under Section 28 of the Specific Relief Act in Civil Misc. Case No. 06/2011.

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Brief facts of the case are that the plaintiff-decree holder preferred a suit seeking decree of specific performance of agreement to sale dated 25.02.1988. The learned trial Court vide judgment and decree dated 07.08.1998 decreed the suit in the following manner:-

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"vkns'k gS fd oknh v:.k dqekj iq= cyjke f[kysjh tkfr tkV fuoklh Qrsgx< rglhy guqekux< dk ;g okn fo:} izfroknh lqHkk"k pUnz ckcr fofufnZ"V ikyuk fodz; vuqca/k fnukad 25-2-88 Hkwfe okds pd 4 vkj vkj MCY;w ds i0u0 125@238 ds fdyk ua0 8] 13 o 18 dk fMdzh fd;k tkrk gSA izfroknh dks ;g Hkh vkns'k fn;k tkrk gS fd og d`f"k Hkwfe ds lEca/k esa oknh ls 'ks"k izfrQy ,oa fodz; foys[k dk [kpkZ izkIr dj ,oa 'ks"k vkSipkfjdrk;sa iw.kZ djokdj mlds gd esa fodz; foys[k dk fu"iknu ,oa iathdj.k djkosa vkSj blds fy;s rhu ekg dk le; fn;k tkrk gSA vkns'k dh izfroknh }kjk ikyuk ugha djus ij U;k;ky; dks ekQZr oknh ds gd esa mDr Hkwfe dks jftLVzjh djk;s tkus dk vkns'k fn;k tkrk gSA oknh okn [kpkZ Hkh izfroknh ls izkIr djus dk vf/kdkjh gksxkA

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rnuqlkj fMdzh ipkZ tkjh gksA"

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On 26.04.2003, the respondent-decree holder preferred an execution petition before the learned Executing Court and the learned Executing Court while issuing notices of the execution petition upon the petitioner permitted to accept challan for depositing the balance consideration as submitted by the respondent-decree holder vide order dated 26.09.2008. Thereafter, on 04.08.2011, the present petitioner filed an application under Section 28 of the Specific Relief Act stating

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therein that there is a gross delay in depositing the balance amount of consideration and remaining part of payment has not been paid yet since last 19 years. Further, it is submitted that the readiness and willingness of the respondent-decree holder was not in continuous, as he failed to comply with the directions issued by the learned Executing Court and there was no application for condonation of delay for doing the requisites. Accordingly, the petitioner prayed for rescission of the decree passed by the learned trial Court.

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The respondent-decree holder submitted reply to the application under Section 28 of the Specific Relief Act denying the averments made in the application. It was submitted that the respondent-decree holder was ready and willing to comply with the directions issued by the learned trial Court, but it is the petitioner, who was using delaying tactics and therefore, the respondent-decree holder was left with no other option, but to prefer the execution petition. Further, it is submitted that the application under Section 28 of the Specific Relief Act is not maintainable in the execution proceedings, therefore, it was submitted that the same may be rejected.

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On 31.08.2016, the application under Section 28 of the Specific Relief Act came up for consideration before the learned Executing Court and the learned Executing Court rejected the same. The appeal preferred against the order dated 31.08.2016 also came to be rejected vide order dated 01.04.2017 by the learned Appellate Court, hence, the present Revision Petition.

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Learned counsel appearing for the petitioner vehemently submitted that the learned Executing Court has committed manifest perversity while passing the impugned order dated 31.08.2016. It is submitted that the learned trial Court has passed the decree for specific performance of agreement to sale. Further, it is submitted that the learned Executing Court failed to consider that in the said decree, there was a condition imposed in the manner that defendant is to receive balance consideration, registration charges, stamp duty charges and other expenses, then to complete other formalities in favour of the plaintiff-decree holder and register the sale deed within a period of three months, else the plaintiff is entitled to get it registered in his name in accordance with law by the Court, which, the decree holder has not complied with. It is further submitted that no explanation and reasonable cause has been stated by the respondent-decree holder for filing the execution application after lapse of five years. The decree holder suo motu deposited the balance consideration through challan dated 17.10.2008, i.e. admittedly after lapse of more than 10 years from the date of passing of decree dated 07.08.1998. It is submitted that the petitioner appeared before the learned Executing Court on 30.04.2011 after service of notice, therefore, the petitioner had adequate rights to make objections by way of filing application under Section 28 of the Specific Relief Act, but learned Executing Court failed to consider the material available on record and the principles of law on this aspect. Further, it is submitted that the learned Appellate Court has also committed grave illegality while holding that application under Section 28 of the Specific Relief Act is in nature of objection under

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Section 47 of the CPC and therefore, the same is not maintainable. Learned counsel for the petitioner submits that looking to the nature of the adjudication, the application under Section 28 of the Specific Relief Act was very much maintainable and therefore, both the orders passed by the learned Executing Court as well as learned Appellate Court deserve to be quashed and set aside and the application preferred by the petitioner under Section 28 of the Specific Relief Act deserves to be allowed. In support of his contentions, learned counsel has relied upon the following judgments:-

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(i) Prem Jeevan versus K.S. Venkata Raman & Anr., reported in 2017 DNJ (SC) 189.

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(ii) V.S. Palanichamy Chettiar Firm versus C. Alagappan, reported in 1999(4) SCC 702.

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(iii) Bhupinder Kumar versus Angrej Singh, reported in 2009 (8) SCC 766.

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(iv) Akeel Ahmed versus Bachchu and Anr., reported in 2014(2) DNJ 530.

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(v) Parvesh Kumar Gulati versus Darshan Singh Gulati, reported in 1998(1) CivCC 672.

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Per contra, learned counsel appearing for the respondent opposed the prayer made by the learned counsel for the petitioner. It is submitted that the learned trial Court as well as learned Appellate Court have rightly refused to entertain the application under Section 28 of the Specific Relief Act, therefore, it is prayed that the present Civil Revision Petition may be rejected.

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Heard learned counsel for the parties and perused the material available on record.

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Before adverting to the merits of the case, it would be apt to quote Section 28 of the Specific Relief Act, which is as follows:-

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"28. Rescission in certain circumstances of contract for the sale or lease of immovable property, the specific performance of which has been decreed.—

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(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.

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(2) Where a contract is rescinded under sub-section (1), the court -

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(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 the lessee as earnest money or deposit in connection with the contract.

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(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:

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(a) the execution of a proper conveyance or lease by the vendor or lessor;

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(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.

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(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.

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(5) The costs of any proceedings under this section shall be in the discretion of the court."

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On a reading of sub-section (1) of Section 28 of the Act, it is clear that any application seeking rescission of the contract on the ground that the purchaser/lessee has not paid the purchase money or other sum as ordered by the Court, is to be made "in

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the same suit in which the decree was made" .

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When Section 28 of the Specific Relief Act specifically provides that the application is to be made "in the same suit", it means in the suit itself, i.e. on the original side and not in the execution proceedings. Admittedly in the present case, the petitioner has preferred the application in the execution proceedings and in view of the ratio laid down by the Hon'ble Supreme Court in the recent case of Sanjay Shivshankar

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Chitkote versus Bhanudas Dadarao Bokade (Died) through

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LR's (SLP(c) No. 24720/2023) decided on 08.12.2023, the proceeding in an Executing Court is not a proceeding in a suit. Para No. 9 of the said judgment reads thus:-

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"9. Admittedly in the instant case, the appellant-decree holder has filed his application(s) seeking permission to deposit the balance sale consideration before the Executing Court which did not have the jurisdiction to entertain the said application(s). Similarly, the judgment debtor also filed his application seeking rescission of the contract under sub-section(1) of Section 28 of the Act before the Executing Court which did not have the jurisdiction to entertain the same. The Court may be the same but the proceedings are distinct. A proceeding in an Executing Court is not a proceeding in a suit. What Section 28(1) speaks of is "in the same suit in which the decree was made ..."

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(emphasis supplied)

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In view of the above, in my considered opinion, the learned Executive Court as well as the learned Appellate Court have rightly passed the orders impugned and the same are well reasoned speaking and warrant no interference.

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