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IN THE HIGH COURT OF BOMBAY
Sharmila U. Deshmukh, J.
Nandu Maruti Pol - Appellant
Versus
Satishkumar Satyanarayan Agarwal - Respondent
Writ Petition No. 9800 of 2012
Decided On : 12-09-2023
SPECIFIC PERFORMANCE - EXECUTION OF DECREES - Sec. 28 of Specific Relief Act, 1963; Sec. 47 of Code of Civil Procedure, 1908 - The court discussed the provisions of Sec. 28 of the Specific Relief Act, which allows for the extension of time for deposit of balance consideration in specific performance cases, and Sec. 47 of the CPC regarding the jurisdiction of the executing court. The court emphasized that the executing court retains control over the decree and can extend time, but such discretion must be exercised judiciously, considering the reasonableness of the delay and the circumstances surrounding the case. The court ultimately found that the executing court had erred in granting an extension of time without sufficient justification, leading to the quashing of the impugned order.
Fact of the Case:
The Respondent (now deceased) filed a suit for specific performance of a sale agreement from 1989, which was decreed in 2004. The Respondent later filed an execution application in 2007, seeking to extend the time for depositing the balance consideration, which was not paid within the stipulated period. The Appellants contested the execution, arguing that the Respondent failed to comply with the decree's conditions.
Finding of the Court:
The court found that the Respondent had not complied with the decree's conditions regarding the payment of the balance consideration and that the application for extension of time was filed after an unreasonable delay of over four years. The court held that the executing court had improperly exercised its discretion in granting the extension without sufficient justification.
Issues: 1. Whether the executing court had the jurisdiction to extend the time for depositing the balance consideration. 2. Whether the discretion exercised by the executing court in granting the extension was justified.
Ratio Decidendi: The court reiterated that the executing court retains control over the decree and can extend time for deposit under Sec. 28 of the Specific Relief Act, but such discretion must be exercised judiciously, considering the reasonableness of the delay and the circumstances of the case. The court emphasized that the Respondent's failure to comply with the decree's conditions and the lack of a sufficient explanation for the delay were critical factors in its decision.
Final Decision: The petition was allowed, the impugned order was quashed, the application for extension of time was rejected, and the application seeking dismissal of the execution proceedings was granted.
JUDGMENT/ORDER
SHARMILA U.DESHMUKH, J. - The Petition takes exception to the order dtd. 21/6/2012 passed by the Additional Judge, Small Causes Court and Joint Civil Judge, Senior Division, Pune below application Exhibit-"10' and Exhibit-"16' in Special Darkhast No. 170 of 2007 allowing the application below Exhibit-"10' and rejecting the application below Exhibit -"16'. During the pendency of the Petition, the Respondent Decree holder expired and his legal heirs were brought on record.
2. The facts of the case stated briefly are that the Respondent(now deceased) had filed Special Civil Suit No. 1922 of 1995 inter alia seeking specific performance of agreement for sale dtd. 20/2/1989 in respect of property bearing Gat No. 1051 admeasuring 0H 53Rs situated at Village Markal, District- Pune. Vide judgment and decree dtd. 14/9/2004 the suit came be decreed as under:
<WXY>Order
1. Suit is decreed with cost.
2. The plaintiff is entitled for specific performance of contract on depositing balance consideration amount within one month from the date of this order.
3. The defendant no. 1 and 2 are directed to execute a registered sale deed of the suit land, and hand over physical possession of the suit property in favour of the plaintiff after obtaining necessary permissions from the District Collector and of the Resettlement of project Displaced Persons Act 1976 within two months from the date of this order, failure to which the plaintiff has to get it execute the registered sale deed and obtained necessary permissions through by the Court Commissioner appointed to that effect on the charges incurred for registered Sale Deed by the Plaintiff.
4. Decree be drawn up accordingly.</WXY>
3. In the year 2007, execution application being Special Darkhast No. 170 of 2007 was filed by the Respondent-decree holder seeking execution of the judgment and decree dtd. 14/9/2004.
4. In the execution proceedings, an application came to be filed on 18 th December, 2008 by the Respondent seeking extension of time for depositing the balance amount of consideration. On 17/2/2009, an application under Sec. 47 of Code of Civil Procedure, 1908 was filed by the Appellants- judgment debtors seeking dismissal of the execution application. Both these applications were heard together and by common impugned order dtd. 21/6/2012 the executing Court allowed the application below Exhibit -"10' filed by the decree holder and rejected the application below Exhibit -"16' filed by the judgment debtors.
5. Heard Mr. Atul Damle, learned Senior Advocate appearing for the Petitioners and Mr. Drupad S. Patil learned counsel appearing for the Respondents .
6. Mr. Atul Damle, learned Senior Advocate for the Petitioners points out Clause No. 2 of the operative part of the judgment dtd. 14/9/2004 directing payment of balance consideration within one month and would contend that neither balance consideration was paid within the stipulated period nor application was filed for extension of time and instead execution application was filed. He submits that the execution application was filed in the year 2007 and the application for extension of time came to be filed on 18/12/2008 after lapse of about four years and three months. He would urge that extension of time in absence of any explanation for the delay could not be granted. He submits that as there was non compliance of direction of deposit, objection was raised seeking dismissal of the execution proceedings. In support of his contentions, he relies upon the following decisions of the Apex Court.
' V. S. Palanichamy Chettiar Firm vs. C. Alagappan and Anr., [(1999) 4 SCC 702],
' Balwant Singh vs. jagdish Singh and Ors.[(2010) 8 SCC 685]
' Kishor Ghanshyamsa Paralikar vs. Balaji Mandir Sansthan Mangrul (Nath) and Anr. [2022 SCC Online SC 1863]
7. Per contra, Mr. Patil, learned counsel for the Respondents submits that along with the present Petition, the facts of the connected Petitions are also required to be taken into consideration as sufficie
The executing court has the authority to extend time for deposit of balance consideration in specific performance cases, but such discretion must be exercised judiciously, taking into account the rea....
The time for depositing the balance sale consideration in a decree for specific performance is not automatically extended after the restoration of the judgment. The decree becomes inexecutable if the....
The decree for specific performance remains executable despite delays in deposit of balance sale consideration, provided no rescission is sought by judgment debtors.
The court retains jurisdiction to extend time for performance of a decree, but such extensions must be justified and considered alongside applications for rescission to ensure fairness.
(1) Recession of contract – Moving of application under Section 28 of S.R. Act for rescinding contract for non-compliance of condition is not mandatory rather optional and immaterial – Court is not p....
Late deposit of balance sale consideration was justified under the circumstances, observing procedural compliance and bona fide actions of the decree holder.
The court affirmed that the executing court has the discretion to extend time for compliance with consent terms of a decree, balancing judicial discretion with creditor protections.
Rescission of contract – Application seeking rescission of contract or extension of time, under Section 28 (1) of Specific Relief Act, 1963 must be decided as application in original suit wherein dec....
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