The legality of a High Court's order affirming an ex-parte decree for specific performance is upheld, with pending disputes to be resolved by lower courts.

ORDER

1. Delay condoned.

2. This petition arises from the judgment and order passed by the High Court of Karnataka at Bengaluru dated 12th October, 2020 in Writ Petition No. 61662 of 2016 by which the petition filed by the petitioner herein came to be rejected thereby affirming the order passed by the Executing Court in I.A. No. 10 in Execution Petition No. 20 of 2003 arising from the judgment and decree passed by the trial court in original suit No. 895 of 1995.

3. We have heard Mr. Devadatt Kamat, the learned senior Counsel appearing for the petitioners and Mr. Ashwin V. Kotemath, the learned counsel appearing for the respondents.

4. For the sake of convenience, the petitioners herein shall be referred to as the original defendants and the respondents herein shall be referred to as the original plaintiffs.

5. It appears from the materials on record that the plaintiffs instituted a suit for specific performance of contract based on an agreement of sale dated 28th June, 1994.

6. The total sale consideration fixed in the agreement of sale is Rs.3,40,000/-. It is the case of the plaintiffs that at the time of execution of the agreement of sale an amount of Rs.2,20,000/- was paid towards earnest money and the balance amount of Rs.1,20,000/- was to be paid at the time of execution of the sale deed.

7. The plaintiffs ultimately had to file a suit for specific performance.

8. The suit proceeded ex-parte. The trial court passed an exparte decree granting specific performance.

9. Having suffered an ex-parte decree, the defendants preferred an application before the trial court with a prayer that the exparte decree be set aside. However, there was delay in preferring such application. The trial court declined to condone the delay.

10. In such circumstances referred to above, the defendants carried the matter further to the district court seeking to challenge the order passed by the trial Court dated 05.01.2023 in Miscellaneous Petition no.21 of 2007, declining to condone the delay. We are informed that the said proceedings are still pending before the district court in so far as the order passed by the trial court declining to condone the delay is concerned.

11. The materials on record further indicate that sometime in 1997, the plaintiffs paid the balance sale consideration of Rs.1,20,000/- to the defendants. However, this fact has been seriously disputed by the defendants. Even after making payment of Rs.1,20,000/- in 1997 as asserted by the plaintiffs, it took six years for them to file the execution petition before the Executing Court.

12. Before the Executing Court, the defendants filed their objections disputing the very factum of payment of the balance sale consideration of Rs.1,20,000/- and also levelling allegations that the plaintiffs have forged few documents in the form of receipt etc. The objections are still pending for being considered by the Executing Court.

13. It appears that the High Court while passing the impugned order has not said anything about the objections which have been raised by the defendants. However, it thought fit to reject the writ petition thereby affirming the order passed by the Executing Court.

14. Whether the payment was actually made by the plaintiffs to the defendants at the relevant point of time is a highly disputed question of fact. We do not propose to get into all this. However, we shall not ignore the fact that the factum of payment has been recorded by the Court in the order sheet.

15. Its too late in the day for the defendants to raise all sorts of objections before this Court. We are only concerned with the legality, & validity of the impugned order passed by the High Court.

16. We find no good reason to interfere with the impugned order. There are two proceedings pending as on date before the courts below. One before the district court in the form of an appeal against the order passed by the trial court declining to condone the delay for the purpose of setting aside the ex-parte decree and the other