The court upheld the execution petition as valid despite claims of limitation, confirming the contractual obligations were fulfilled, thus denying rescission of contract.

ORDER :

PRADEEP SINGH YERUR, J.

Heard learned counsel Sri.M Shivaprakash for petitioner and learned counsel Sri.A Ravishankar for respondent.

2. This petition is filed by the judgment debtor seeking to set aside the order dated 08.11.2024 on I.A.No.2 in Execution Petition No.114/2022 by the Senior Civil Judge and JMFC at N.R.Pura, itinerate Court of Koppa.

3. Brief facts of the case are as under:

The parties to the proceedings shall be referred to as the judgment debtor and the decree holder as per their status in the execution petition.

4. The suit came to be filed by the decree holder, who was the plaintiff for specific performance of the agreement of sale dated 24.08.1988 in respect of Schedule A and C properties. After the contest, the trial court decreed in respect of 'B' schedule property. The entire sale consideration amount was paid. It was also agreed that the plaintiff would pay an additional sum of Rs.18,00,000/- to the defendants within a time frame of 6 months, which was agreed upon between the parties, and he would have no objection to acquiring the right over the 'C' schedule property.

5. The petitioner/JDR being aggrieved by the order of the trial Court preferred RFA.No.934/2004, wherein a joint memo came to be filed and the same was accepted, and accordingly the RFA came to be disposed of in view of the joint memo filed by the decree holder and the JDR. It is contended that as per the order in RFA.No.934/2004 dated 23.09.2010, it was ordered that the plaintiff shall deposit a sum of Rs.18,00,000/- within a period of 6 months from the date of disposal of the RFA and then the defendants shall execute the sale deed. In this regard, the parties filed a memo in O.S. No.62/1996; the petitioner/JDR sought for payment of Rs.18,00,000/- in terms of the memo, and as the respondent/DHR insisted for execution of the sale deed and the trial Court did not pass an order and directed the parties to approach the executing Court for execution of the deed of sale.

6. It is further stated that thereafter the DHR filed an execution petition in Ex.No.114/2022 for execution of the decree and the joint memo terms and conditions agreed upon in the RFA proceedings. In the execution petition, the JDR filed an application in IA No. 2 under Section 28 (1) of the Specific Relief Act read with Section 151 CPC taking a plea that the execution petition is not maintainable, in view of it being barred by the law of limitation, more particularly Article 136 of the Limitation Act. As the decree came to be passed in the RFA on 23.09.2009, the execution petition was filed on 26.09.2022. So therefore, on calculation from the date of the order passed in the RFA proceedings till the date of the filing of the execution petition, 12 years had already expired, and therefore there was no scope for the executing Court to entertain the execution petition. Along with it, he took up a plea to rescind the contract as contemplated under (1) of the Specific Relief Act. This application, upon contest, came to be rejected by the executing Court, which is now the subject matter of challenge in this Court.

7. It is the vehement contention of learned counsel Sri.M.Shivaprakash, appearing for the JDR, that the impugned order passed by the executing Court is illegal, perverse and contrary to the facts and circumstances of the case, and therefore the same requires to be set aside and consequently the execution petition deserves to be rejected on the ground of bar of limitation. It is further contended that the execution petition itself is not maintainable. The executing Court has failed to appreciate this aspect and has continued with