1. Suit for specific performance — ex-parte decree — application to set aside decree rejected due to delay — execution proceedings initiated — dispute over balance payment. (Para 5 , 8 , 9 , 11 , 12 )
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2025 Supreme(SC) 48
SUPREME COURT OF INDIA
J.B. PARDIWALA, R. MAHADEVAN, JJ.
Thimakka Since Deceased By Lrs – Petitioner
VERSUS
Venkataramanappa Since Deceased By Lrs & Anr. – Respondents
Special Leave Petition (Civil) Diary No. 21418 of 2023
Decided On : 02-01-2025
Advocates appeared:
For the Petitioner(s): Ms. Awantika Manohar, AOR Mr. Devadatt Kamat, Sr. Adv. Mr. Saket Gogia, Adv. Mr. Harsh Pandey, Adv. Mr. Revanta Solanki, Adv. Ms. Gauri Pande, Adv. Ms. Sheetal Maggon, Adv. Mr. Man Singh, Adv. Mr. Dhawesh Pahuja, Adv.
For the Respondent(s).: Mr. Ashwin V. Kotemath, Adv. Mr. Harisha S.r., AOR
For the Petitioner(s): Ms. Awantika Manohar, AOR Mr. Devadatt Kamat, Sr. Adv. Mr. Saket Gogia, Adv. Mr. Harsh Pandey, Adv. Mr. Revanta Solanki, Adv. Ms. Gauri Pande, Adv. Ms. Sheetal Maggon, Adv. Mr. Man Singh, Adv. Mr. Dhawesh Pahuja, Adv.
For the Respondent(s).: Mr. Ashwin V. Kotemath, Adv. Mr. Harisha S.r., AOR
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.
Headnote:(A) Specific Relief Act, 1963 - Section 20 - Writ Petition - The petition arises from a High Court order affirming an ex-parte decree for specific performance and rejecting the defendants' plea to condone delay in challenging the decree. The plaintiffs asserted payment of balance sale consideration, disputed by defendants. The High Court did not address defendants' objections. (Paras 2, 10, 13, 16)
(B) Execution Proceedings - The court emphasized that pending proceedings regarding the condonation of delay and allegations of forgery must be resolved based on their merits. (Paras 16, 18)
Facts of the case:
The plaintiffs filed for specific performance based on a 1994 agreement, asserting payment of earnest money and balance consideration, while defendants disputed the payment and alleged forgery. The trial court granted an ex-parte decree.
Findings of Court:
The court found no reason to interfere with the High Court’s order, stating that pending matters should be decided by the respective courts on their merits.
Issues: The main issue was the legitimacy of the defendants' objections regarding payment and forgery allegations.
Ratio Decidendi: The court held that the legality of the High Court's order was not in question, and the disputed facts should be addressed by the lower courts.
Result: Petition disposed of.
Legal Category Hierarchy
Table of Contents
2. Defendants dispute the payment of balance sale consideration and allege forgery of receipts in the execution proceedings. (Para 11 , 12 )
3. The court found no reason to interfere with the High Court order as proceedings regarding the ex-parte decree and execution objections remain pending. (Para 13 , 14 , 15 , 16 )
4. Higher courts may decline interference with orders when substantive challenges to the underlying decree and execution objections are pending before lower courts. (Para 16 , 17 , 18 )
5. Petition disposed of; High Court order affirmed; execution of decree subject to final orders in pending district court and executing court proceedings. (Para 16 , 17 , 18 )
6. Whether a higher court should interfere with an order when proceedings to set aside an ex-parte decree and execution objections are pending?
The court may decline interference if there are pending proceedings before the district court regarding the condonation of delay to set aside an ex-parte decree and before the executing court regarding objections to execution. (Para 16 , 17 , 18 )
7. How are disputed questions of fact, such as payment of consideration or forgery, addressed during execution proceedings?
Such disputed questions of fact are to be decided by the respective courts on their own merits in accordance with law. (Para 12 , 14 , 17 )
8. Does the pendency of applications to set aside an ex-parte decree stay the execution of the decree?
The court clarified that the execution of the decree of specific performance shall be subject to the final orders that may be passed by the courts below. (Para 18 )
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
