Prem Jeevan vs. K. S. Venkata Raman, (2017) 11 SCC 57; Bansi Sao vs. Jageshwar Prasad Sao, (1997) 1 PLJR 1017 – Referred.

Arun Kumar Jha, J. – The present civil misc. petition has been filed under Article 227 of the Constitution of India against the order dated 06.03.2017 passed by the learned Subordinate Judge-I, Gopalganj in Misc. Case No. 304 of 2016 rejecting the prayer of the petitioner made under Section 28 of the Specific Relief Act, 1963.

2. The conspectus of the case, as it appears from the record, is that the respondent file Title Suit No. 511 of 2002 against the original petitioner for grant of a decree for specific performance of contract with respect of 12 dhurs of land out of Plot No. 1069, Khata No.249 in the town of Mirganj Bazar, District-Gopalganj. The plaintiff/respondent contended that the defendant/petitioner contracted to sale the disputed land for a sum of Rs. 1,20,000/-. The petitioner took earnest money of Rs. 65,000/- from the respondent and agreed to execute the saledeed on receipt of the rest amount of Rs. 55,000/-. The suit was decreed and the operative part of the said order reads as under: –

“Under the aforesaid facts and circumstances, it is ordered that the suit is decreed in favour of the plaintiff and defendant is directed to receive the remaining consideration money of Mahadanama, Rs. 55,000/- from the plaintiff and execute the sale deed within a month in favour of plaintiff failing which the plaintiff shall be entitled to get the same executed and registered through the process of the court on depositing the balance amount of Rs. 55,000/- at his cost, which shall be binding upon the defendant/applicant.”

However, it appears that the balance amount of Rs. 55,000/- was not tendered to the defendant/petitioner who filed Title Appeal No. 48 of 2005 in the court of District Judge, Gopalganj and the said appeal came to be dismissed vide judgment and decree dated 01.12.2015 passed by learned 3rd Additional District Judge, Gopalganj. Against the said judgment and decree, the petitioner preferred Second Appeal No. 37 of 2016 before this Court, which is still pending. It further transpires from the record that during pendency of the first appeal, the respondent filed Execution Case No. 108 of 2015 in the court of learned Subordinate Judge-I, Gopalganj on 11.06.2015 for execution of decree dated 23.03.2005 passed in Title Suit No. 511 of 2002. However, in the said execution case, nothing was said about tendering of the balance amount. However after eight months of filing the execution case, the respondent moved for amendment of prayer seeking fresh direction against the petitioner to accept Rs. 55,000/-. But, this sum of Rs. 55,000/- was not deposited by the opposite party in the suit or in the execution case. Thereafter, on 07.04.2016, the respondent filed an application before the learned executing court seeking permission to deposit Rs. 55,000/-. The petitioner filed objection under Section 28 of the Specific Relief Act, praying to dismiss the execution case treating the contract of sale as having been rescinded on the ground mentioned in the application. Further case of the petitioner(s) is that as the execution court was not passing order on the petition of the petitioner filed under Section 28 of the Specific Relief Act and an objection was taken about not filing the suitable petition in the suit, the petitioner filed Misc. Case No. 304 of 2016 in the court of learned Subordinate Judge-I, Gopalganj on 14.09.2016 under Section 28 of the Specific Relief Act with a prayer to rescind the contract. Even before admission of misc. case, an objection was filed by the decree-holder on 03.01.2017 contending that the petition of the petitioner filed under Section 28 of the Specific Relief Act was not maintainable. After hearing the parties, the learned Sub Judge-I, Gopalganj rejected the petition filed on behalf petitioner/judgment debtor.

3. Learned senior counsel appearing on behalf of the petitioners submit