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THE HONBLE SRI JUSTICE B. CHANDRA KUMAR
Kedarisetti Atmaram
Vs.
N. Seetharamaraju
Civil Revision Petition No. 5044 of 2009
Decided on : 31-08-2010
b) CIVIL PROCEDURE CODE, 1908, Order 9 Rule 6 - Specific Relief Act, 1963, Section 20 – A suit for specific performance decreed exparte by a court without looking into material averments in the document and without taking into account several important factors like non-registration of the document, and also If from the recitals of the documents and from the averments of the plaint it appears that there is any material alteration in the recitals of the document giving advantageous position to the plaintiff and may result in unjust denial of the rights of the defendant, then the Court is not bound to accept the case of the plaintiff particularly while dealing with a case of specific performance, then the writ petition challenging such a decree had been rightly set aside. (Para 30)
c) REGISTRATION ACT, 1908, Sec. 17 (1) – An acknowledgement of payment of the balance consideration of a sale agreement by way of adjustment of debt due to the vendee by the vendor is an alteration of the original sale deed affecting right in an immovable property and had to be registered as per Section 17 (1) of Registration Act and unless it is accordingly registered, a suit for specific performance on the basis of it is not maintainable. AIR 1963 SC 70 - Relied on. (Para 35)
d) PROVINCIAL INSOLVENCY ACT, 1920, Section 28 (2) :- A suit filed for specific performance by a vendee against whom a petition for insolvency was filed by his creditors and pendency of this suit was suppressed by the petitioner vendee while filing the suit, an exparte decree obtained in such a suit is an abuse of the process of the court. (Paras 36, 40 and 41)
e) SPECIFIC RELIEF ACT, 1963, Sec. 20 :- Once it is established an exparte decree for specific performance was obtained by playing a fraud on different counts, like not mentioning the correct address of the defendant and servicing summons on him, not mentioning the fact that the petition was filed during the pendency of insolvency petition against the plaintiff, the decree is non est and not executable. (Paras 51 and 52)
f) LIMITATION ACT, 1963/Article136 :- The limitation of 1 years prescribed in the statute cannot be waived merely because after date of decree for specific performance from the date of knowledge that it is passed cannot be said to have been waived just because the court allowed him to deposit the balance of sale consideration after 10 years and review against that order is dismissed by the High Court. The date of limitation has to be counted from the date decree is filed, but not from the date of deposit of balance consideration (Para 87)
g) SPECIFIC RELIEF ACT, 1963, Sections 16 and 20 - Provincial Insolvency Act, 1920, Section 28 (2) - Limitation Act, 1963, Article 136 – Where the court while passing exparte decree for specific performance suit, below had failed to notice several vital information like limitation, failure to obtain permission of the insolvency court, the decree is a nullity and it cannot be enforced. (Para 88)
This Civil Revision Petition, under Article 227 of the constitution of India, is directed against the order dated 24.08.2007 passed in E.P.No.86 of 2005 in O.S.No.71 of 2002 by the Senior Civil Judge, Tadepalligudem, whereby and whereunder, the objections filed by the petitioner herein in the form of counter for execution of the decree were overruled.
2. While the petitioner herein was facing insolvency proceedings in I.P. No. 14 of 1990 on the file of the Subordinate Judge, Tanuku, the respondent herein, who is also the second respondent in the said insolvency proceedings, filed O.S. No. 71 of 1992 on the file of the Subordinate Judge, Tadepalligudem, for specific performance basing on the agreement of sale. The petitioner herein was set ex parte and an ex parte decree was passed in the said suit on 17.09.1992. The petitioner herein filed an application to set aside the ex parte decree passed against him. He also filed an application to condone the delay of 278 days in filing the said application. However, the said application was dismissed for default. The petitioner again filed another application to restore the same and the same is pending.
3. The I.P. No. 14 of 1990, filed against the petitioner, was allowed on 24.11.1998. The matter was carried in appeal and in appeal the order of the Insolvency Court was set aside in A.S. No. 4 of 1999 on the file of the IV Additional District and Sessions Judge (Fast Track Court), Tanuku. Meanwhile, the respondent filed E.P (SR) No.2394 of 1996 for execution of the decree in O.S. No.71 of 1992. However, an objection was raised that the E.P. was not maintainable for non-deposit of the remaining sale consideration amount and, therefore, the said E.P. was not pressed and consequently it was rejected on 17.07.2002. Subsequently, the respondent filed I.A. No. 302 of 2001 in O.S. No.71 of 1992 to condone the delay of 2928 days in depositing the balance of sale consideration amount. The said petition was allowed on 17.09.2002. Though the said order was challenged in revision in C.R.P. No.3124 of 2008 before this Court, but the said CRP was dismissed on 09.11.2009. Basing on the orders in I.A. No.302 of 2001, the respondent deposited the balance of sale consideration of Rs.20,000/- on 20.09.2002 and then filed the present E.P. No.86 of 2005. The petitioner herein raised several objections. His case was that summons were not served on him and that he filed an application to set aside the ex parte decree and the said application is pending and that the respondent had fraudulently obtained the decree without paying him the sale consideration amount and the endorsements on the agreement of sale Ex.A1 are not genuine and that there is inordinate delay in filing the E.P and that the E.P. was not maintainable. The lower Court, holding that the respondent had already filed I.A. No.302 of 2001 and that the delay in depositing the balance of sale consideration was condoned in the said application and that the earlier petition filed by the petitioner to set aside the ex parte decree was dismissed and therefore there are no valid objections raised by the petitioner, has passed the impugned order on 24.08.2007, which is under challenge in this revision.
4. Heard Sri S. Sreeramachandra Murthy, learned counsel for the petitioner and Sri P.V. Vidya Sagar, learned counsel for the respondent. Both the counsel have advanced elaborate arguments and cited several decisions in support of their contentions.
5. The points that arise for consideration in this revision are 1) Whether the application under Article 227 of the Constitution of India is maintainable without invoking the revisional jurisdiction? 2) When the defendant is set ex parte, whether the Court is not required to consider the plaint averments and the documents filed by the plaintiff and come to an independent conclusion whether the plaintiff is entitled for the decree basing on the material available on record? 3) Whether the acknowledgments mad
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