IMPORTANT POINTS
Mere grant of alternative relief does not make a decree ambiguous.
While deciding application u/s 28 Specific Relief Act, 1963 court should balance equities.

Headnote:(a) Code of Civil procedure, 1908 – Order VIII, rule 10 – Ex parte decree – Is a valid decree for all purposes. (Para 20)
       Code of Civil procedure, 1908 – Order XXI, rule 35 – Decree for specific performance attaining finality – Defendants cannot thereafter turn round and make contentions regarding the executability of the decree. (Para 21)
       (b) Code of Civil procedure, 1908 – Order XXI, rule 35 – Suit for specific performance decreed – Alternative relief also mentioned – In view of decree for specific performance question of reference to alternative remedy does not arise – Merely grant of alternative relief does not make the decree ambiguous. (Para 22)
       AIR 1960 SC 388 – Relied upon
       (c) Specific Relief Act, 1963 – Section 28 – Rescission of contract – Delay of about a decade in execution of decree – Vendors’ liability increasing manifold due to hike in real estate – While purchaser is entitled to compensation for delay in execution, vendor is also entitled for compensation on account of appreciation in real estate value – Vendor and purchaser both at fault – Equities should be balanced. (Para 27, 37, 41, 44)
       (1972) 3 SCC 684; (2002) 8 SCC 146; (2013) 8 SCC 131 – Relied upon
       Facts of the case:
       1. One Nand Lal (deceased) was the perpetual lessee of property bearing Bungalow No. 9, Sunder Nagar, New Delhi measuring 0.179 acres equal to 865 sq. yards equal to 721 sq. metres. His legal heirs are - (1) Banarsi Das; (2) Dhanpat Rai; (3) Din Dayal; and (4) Gaindo Devi (widow of a pre-deceased son Paras Ram) as his legal heirs. Each had a 1/4th share in the suit property. Din Dayal passed away leaving behind, as originally claimed - (5) his widow Sushila Devi; (6) son Mohinder Kumar Gupta; (7) son Surinder Dayal; (8) son Narinder Dayal; and (9) daughter Vijay Laksmi and each of them had 1/24th share each in the suit property.
       2. The eight legal heirs of Nand Lal entered into an agreement to sell the aforesaid immovable property with Kuldeep Singh- (respondent) for a total sum of Rs.14,00,000/- out of which Kuldeep Singh paid Rs.1,40,000/- as earnest money and possession of one garage in the suit property was handed over to him. The balance amount of Rs.12,60,000/- was to be paid by the respondent on the execution and registration of the sale deed and delivery of possession.
       3. One Rajinder Kumar claims that he is son of the late Din Dayal and at the time of agreement to sell, he was a minor. He filed a suit through his maternal grandfather and sought a declaration that the agreement for sale was illegal as he was not a party to it. The suit was dismissed for default on 22.05.1984. After more than 17 years, it was eventually restored on 17.01.2002.
       4. The respondent-Kuldeep Singh filed a suit on 10.01.1982 for specific performance of the agreement against the eight legal heirs, impleading also Rajinder Kumar in the said suit as defendant no. 9, before the High Court of Delhi. The suit was decreed ex parte on 30.04.1984 and it attained finality.
       5. Kuldeep Singh filed Execution Petition (No. 164/1990) on 07.11.1990. The Single Judge of High Court held that the decree was executable.
       6. However the Division Bench held that the decree was not executable against the then minor Rajinder Kumar, as there was no decree against him.
       7. The review petition filed by the appellants was dismissed.
       Finding of the Court:
       The decree is executable.

Judgment :-

Kurian Joseph, J.

Leave granted.

2. Specific performance is an equitable relief granted by the courts in specific situations. Plainly speaking, equity means fairness. According to Sir Edward Fry, the Court by a decree of specific performance compels the defaulting party to do that which in conscience he is bound to do, viz., actually and specifically to perform his contract [FRY A Treatise on the Specific Performance of Contracts by The Rt. Hon. Sir Edward Fry, Sixth Edition, see Paragraph 62, at page 29.]. Conscience means a person’s moral sense of right or wrong [Concise Oxford English Dictionary, 10th Edition.]. Thus, what is morally wrong cannot be equitably right and necessarily what is morally right will be just and proper. This prelude is the keyhole for us to see through the factual and legal position of a three decade long litigation on a specific performance.

FACTS

3. One Nand Lal (deceased) was the perpetual lessee of the Land and Development Officer (hereinafter referred to as ‘L&DO’) of property bearing Bungalow No. 9, Sunder Nagar, New Delhi measuring 0.179 acres equal to 865 sq. yards equal to 721 sq. metres. His legal heirs are - (1) Banarsi Das; (2) Dhanpat Rai; (3) Din Dayal; and (4) Gaindo Devi (widow of a pre-deceased son Paras Ram) as his legal heirs. Each had a 1/4th share in the suit property. Din Dayal passed away leaving behind, as originally claimed - (5) his widow Sushila Devi; (6) son Mohinder Kumar Gupta; (7) son Surinder Dayal; (8) son Narinder Dayal; and (9) daughter Vijay Laksmi and each of them had 1/24th share each in the suit property.

4. The eight legal heirs of Nand Lal entered into an agreement to sell the aforesaid immovable property on 29/30.07.1980 with Kuldeep Singh- (respondent) for a total sum of Rs.14,00,000/- out of which Kuldeep Singh paid Rs.1,40,000/- as earnest money and possession of one garage in the suit property was handed over to him. The balance amount of Rs.12,60,000/- was to be paid by the respondent on the execution and registration of the sale deed and delivery of possession.

5. One Rajinder Kumar (Petitioner in SLP (C) No. 19215/2011) claims that he is son of the late Din Dayal and at the time of agreement to sell, he was a minor. He filed a suit through his maternal grandfather (Suit No. 1428 of 1981) and sought a declaration that the agreement for sale was illegal as he was not a party to it. The suit was dismissed for default on 22.05.1984. After more than 17 years, it was eventually restored on 17.01.2002.

6. The respondent-Kuldeep Singh filed a suit (Suit No. 280/1982) on 10.01.1982 for specific performance of the agreement against the eight legal heirs, impleading also Rajinder Kumar in the said suit as defendant no. 9, on the original side of High Court of Delhi. The suit was decreed ex parte on 30.04.1984. Appeal (RFA (OS) NO. 14/1985) against the above Judgment dated 30.04.1984 was dismissed vide order dated 22.03.1985 as time barred. An application under Order IX Rule 13 of the Code of Civil Procedure, 1908 filed thereafter for setting aside the decree was also dismissed on 15.07.1985. Thus, the decree has attained finality.

7. Kuldeep Singh filed Execution Petition (No. 164/1990) on 07.11.1990. Mohinder Kumar Gupta (petitioner in SLP No. 28302 of 2010), one of the judgment debtors, filed Application No. 110/1991 objecting to the execution of the decree. Another application EA NO. 111/1991 was filed by minor Rajinder Kumar under Order XXI Rule 58 of the Code of Civil Procedure, 1908. Single Judge of the Delhi High Court vide Judgment dated 01.02.2002 dismissed both petitions holding that the decree dated 30.04.1984 is executable. Aggrieved, Mohinder Kumar Gupta filed FAO (OS) No. 66/2002 against the aforesaid judgment dated 01.02.2002 and Rajinder Kumar filed EFA (OS) No. 4/2002 before the Division Bench of the High Court.

8. Meanwhile, on 24.04.1999, some of the appellants filed an application under Section 28 of Specific Relief Act,1963 (IA No. 4274/199

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2014 Supreme(SC) 92

IMPORTANT POINTSMere grant of alternative relief does not make a decree ambiguous. While deciding application u/s 28 Specific Relief Act, 1963 court should balance equities.

Cases Referred (4)

IMPORTANT POINTS
Mere grant of alternative relief does not make a decree ambiguous.
While deciding application u/s 28 Specific Relief Act, 1963 court should balance equities.