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IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
R.G. Avachat, J.
Prakash Vitthal Kale - Appellants
Vs.
Maharashtra Pulse Mills - Respondent
Writ Petition No. 2531 of 2014
Decided On : 23-02-2021
Specific Performance - Execution of Decree - Section 28 of the Specific Relief Act, 1963 - [Specific Performance] - [Specific Relief Act, 1963, Section 28] - The court discussed the application of Section 28 of the Specific Relief Act, 1963, which empowers the court to extend the time for compliance of the decree or grant an order of rescission of the agreement. The court emphasized that the power to grant relief of extension of time under Section 28 is discretionary and has application only when a time limit has been prescribed for performance of a particular condition in the decree. The court highlighted the terms of the decree, which indicated that the respondent/decree holder was not directed to deposit the amount of balance consideration within a time frame, and therefore, Section 28 had no application. Even if Section 28 applied, the petitioner/judgment debtor did not file an application for rescission of the contract. The executing court was found to have rightly exercised its discretion in permitting the respondent/decree holder to deposit the amount of balance consideration.
Fact of the Case:
The respondent, a partnership firm, filed a suit for specific performance of an agreement for sale in 1975. The suit was decreed in 1977, and the proceedings for execution of the decree were initiated in 1978. The petitioner/judgment debtor, instead of obeying the decree, successfully stalled the execution of the decree and transferred the suit land to third parties after the dismissal of the execution proceedings. The respondent/decree holder filed an application seeking permission to deposit the amount of Rs. 42,000, which was allowed by the executing court. The petitioner/judgment debtor challenged this order in a Writ Petition.
Finding of the Court:
The court found that the respondent/decree holder was not directed to deposit the amount of balance consideration within a time frame, and therefore, Section 28 of the Specific Relief Act, 1963 had no application. The executing court was found to have rightly exercised its discretion in permitting the respondent/decree holder to deposit the amount of balance consideration. As a result, the Writ Petition was dismissed.
Issues: The issues revolved around the discretionary nature of relief of specific performance, the application of Section 28 of the Specific Relief Act, 1963, and the delay in depositing the amount of balance consideration by the respondent/decree holder.
Ratio Decidendi: The court emphasized that the power to grant relief of extension of time under Section 28 of the Specific Relief Act, 1963 is discretionary and has application only when a time limit has been prescribed for performance of a particular condition in the decree. The court also highlighted that even if Section 28 applied, the petitioner/judgment debtor did not file an application for rescission of the contract, and the executing court rightly exercised its discretion in permitting the respondent/decree holder to deposit the amount of balance consideration.
Final Decision: The Writ Petition was dismissed, and the interim relief granted earlier was continued for the next three weeks.
ORDER :
R.G. Avachat, J.
1. The challenge in this Writ Petition is to the order dated 25.02.2014 passed by 6th Joint Civil Judge, Junior Division, Jalgaon, below application, Exhibit-179 in Regular Darkhast No. 152 of 2012 (Special Darkhast No. 2 of 1978). By the impugned order, the respondent herein (decree holder) has been allowed to deposit Rs. 42,000/-, petitioner No. 1 (deceased)-original Judgment Debtor has been directed to execute sale deed and in the event of his failing to do so, the respondent-decree holder were given liberty to get executed the sale deed through Court.
BRIEF RESUME OF FACTS:
2. The respondent, partnership firm, filed a suit being Special Civil Suit No. 4 of 1975 for specific performance of agreement for sale against petitioner No. 1. On 30.07.1977, the suit was decreed. The respondent/firm filed proceedings (Regular Darkhast No. 2 of 1978) for execution of the decree on 06.02.1978. The petitioner/judgment debtor preferred First Appeal (295 of 1978). The same came to be dismissed on 23.06.1982. Under the decree, the petitioner/judgment debtor was directed to obtain Non-Agriculture (N.A.) permission from the concerned authority within a period of two months and then, execute sale deed in favour of the respondent/decree holder on receipt of Rs. 42,000/-.
3. Since the petitioner/judgment debtor did not obey the decree, the executing Court passed order dated 06.09.1980 appointing a Court Commissioner for moving competent authority for seeking N.A. Permission. On 14.01.1983, the Collector rejected N.A. Permission. On 18.06.1991, however, the Collector, Jalgaon, granted N.A. permission for residential purpose. The order granting N.A. permission was challenged by the petitioner/judgment debtor before the Commissioner. In January 1992, the Commissioner set aside the Collector's order granting N.A. Permission. He remanded the case back to the Collector with a direction to give the petitioner/judgment debtor an opportunity of hearing. The respondent/decree holder challenged the said order before the State Government unsuccessfully.
4. The respondent/decree holder challenged the Government's order before this Court in Writ Petition No. 627 of 1994, which came to be allowed. In the meanwhile, the execution proceedings were dismissed on 30.04.1994 on the ground that name of the respondent/decree holder-firm and it's partners were changed. Soon after dismissal of the execution proceedings, petitioner/judgment debtor sold the land to respondent Nos. 2 to 5. The respondent/decree holder challenged the order of dismissal of the execution proceedings in Civil Revision Application No. 389 of 1994. This Court allowed said Revision Application on 19.06.2003.
5. It is only thereafter, on 13.01.2014, the respondent/decree holder filed application below Exhibit-179 seeking permission to deposit the amount of Rs. 42,000/-. On hearing the petitioner/judgment debtor and the respondent/decree holder, the executing Court allowed the application below Exhibit-179 in term of the order stated herein above. Said order is under challenge in this Writ Petition.
6. Mr. Dhorde, learned senior counsel appearing for the petitioner/judgment debtor, would submit that the application below Exhibit-179 was moved thirty six years after the suit was decreed and ten years after Writ Petition No. 627 of 1994 was allowed setting aside the order of dismissal of the execution proceedings. The application is conspicuously silent to state reasons, as to why the application was filed so belatedly. According to learned senior counsel, the relief of specific performance is discretionary. A decree granting specific performance is a preliminary decree until the same is executed. The respondent/decree holder has all along to be ready and willing to perform his part of the contract. The respondent/decree holder was to deposit the amount of balance consideration within a time frame of two months after passing of the decree. In support of his submissions, learned seni
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