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2001 Supreme(AP) 846

Andhra Pradesh High Court
Judges : GODA RAGHURAM
Pagadala Pedda Yadalah - Appellant
Versus
K.Annapurnamma - Respondent
CRP.Nos.1498&1500/2000
Decided On : 08-10-01
Advocates Appeared :
Mr.K. Rama Krishna Reddy, Mr.B. Mahender Reddy, Mr.O.Manohar Reddy

Headnote:SPECIFIC RELIEF ACT, 1877, Sec.28 - Suit for specific performance of agreement of sale - Decreed exparte - In terms of decree plaintiff required to pay balance sale consideration within a period that would enable and obligate defendants to execute regular sale deed and deliver possession within 3 months from 6-3-98 - Plaintiff without depositing amount filing E.P more than 1 1/2 years after expiry of time stipulated in decree - Meanwhile defendant filing application u/S.28 for rescission of agreement - Trial court granting time to deposit balance sale consideration on or before 8-3-2000.

       Decree for specific performance has a distinct character and it is a decree in favour of both plaintiff and defendant in suit and is capable of being executed by either - Decree in this case clearly requires payment of balance sale consideration within 5-6-98 - Order of trial court directing decree holder to deposit sale consideration on or before 8-3-2000 and allowing application of plaintiff seeking setting off costs awarded against balance sale consideration payable - Illegal - Order set aside.

GODA RAGHURAM, J.

( 1 ) SINCE common issues are involved and! between same parties these revisions are considered together and disposed of by this common order.

( 2 ) RESPONDENTS 1 and 2 herein are the! plaintiffs in O. S. 23/95 on the file of the senior Civil Judge, Bhongir, Nalgond district. The suit has been filed for specific performance of the agreement of sale dated 10-10-1995. Respondents 3 and 4 herein and the revision petitioners are the defendants in the suit.

( 3 ) THE suit was decreed on 6-3-1998 ex parte. The decree to the extent relevant and material for the purpose of these revisions, reads as under:"2. That the defendants do hereby directed to execute a regular sale deed in favour of the plaintiff No. 1 in respect of the suit schedule property on receipt of balance sale consideration and also deliver the physical and vacant possession of the suit schedule property to the plaintiff no. 1, within three months. "

( 4 ) IN terms of the decree above, the plaintiffs are required to pay the balance sale consideration within a period that would enable and obligate the defendants to execute a regular sale deed and deliver vacant physical possession of the suit schedule property, within three months i. e. , before 5-6-1998.

( 5 ) THE plaintiffs did not deposit the amount, but on 16-12-1999, more than 1 1/2 years after the expiry of the time ordained in the decree, filed an Execution Petition for execution of the decree. The Court below numbered the E. P. on 19-1-2000 and passed an order directing the plaintiffs to deposit the balance sale consideration in the Court on or before 8-3-2000. Against this order c. R. P. 1498/2000 is instituted. On 3-4-2000 the plaintiffs instituted an application e. A. 19/2000 seeking setting off of the costs awarded against the balance sale consideration payable by them under the decree. This application was ordered, without notice to the defendants- the revision petitioners herein. C. R. P. 1500/2000 is directed against the order in E. A. 19/2000.

( 6 ) MEANWHILE, the revision petitioners filed an application under Section 28 of the specific Relief Act for rescission of the agreement of sale dated 10-10-1995, which is pending.

( 7 ) HEARD Sri K. Ramakrishna Reddy, learned Senior Counsel instructed by mr. B. Mahinder Reddy and Sri O. Manohar reddy, learned Counsel for the disputant parties.

( 8 ) THE petitioners assail the orders of court below, in brief, as under: (A) The E. R. , Having been instituted on 16-12-1999 more than 1 1/2 years of the expiry of time stipulated in the decree for deposit of sale consideration (5-6-1998) and without any application for extension of time having been filed or granted, could not have been entertained. (B) The order of the Court below dated 19-1-2000 in the E. P. directing the plaintiffs to deposit the balance sale consideration by 8-3-2000, contrary to the terms of the decree and passed even without notice to the petitioners herein is illegal. (C) The order of the Court below dated 3 -4 -2000 in E. A. 19/2000 permitting the plaintiffs to avail setting-off of the costs awarded to them against the balance sale consideration payable under the decree, even without notice to the petitioners herein constitutes a material irregularity and illegality revisable under Section 115 of the Civil procedure Code.

( 9 ) A decree for specific performance has a distinct character. It is a decree in favour of both the plaintiff and the defendant in the suit and is capable of being executed by either - vide Bai Karimabibi v. Abdereliman sayad Banu; Haramba Chandra Maitra v. Jyotish Chandra Sinha; H. I. Trust v. Haridas mundhra.

( 10 ) THE Court which passes a decree for specific performance retains control over the decree even after passing of the decree. It has thus been held that the Court which passed a decree for specific performance has the power to extend the time fixed in the decree for the reason that the Court retains control over the decree and the contract between










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