Arun Kumar Jha, J.—

In C. Misc. Jurisdiction No. 640 of 2024

The petitioner has filed the present petition under Article 227 of the Constitution of India for quashing the order dated 13.10.2023 passed by learned Sub-Judge-II, Bettiah, West Champaran in Execution Case No. 07 of 2003 whereby and whereunder the learned Sub-ordinate Court has granted permission to the respondent-decree holder to deposit Rs.55,000/-, towards the balance consideration amount for execution of the ex parte judgment dated 19.10.2001 passed in Title Suit No. 36 of 2000.

2. The conspectus of the case, as it emerges from the record, is that the respondent filed Title Suit No. 36 of 2000 seeking relief of specific performance of contract against the defendant/petitioner putting a case that plaintiff and defendant had entered into an agreement for sale in the year 1997 for a piece of land appertaining to Thana No. 128, Ward No. 3, Khesra No. 6382 and 6399, Area- 1 katha 10 dhurs for consideration amount of Rs. 2,25,000/-. The matter proceeded ex parte and vide judgment dated 19.10.2001, the suit was decreed against the defendant with direction to execute the sale deed after taking the balance amount of Rs.55,000/- within 90 days from the date of passing of the order with further stipulation that the plaintiff would be at liberty to proceed in accordance with law to get the sale deed executed in case of failure of the defendant to abide by the direction. Subsequently, the decree holder/plaintiff/respondent filed Execution Case No. 7 of 2003 in the Court of learned Sub Judge 4th, Bettiah, West Champaran for execution of the decree dated 05.12.2001 passed in Title Suit No. 36 of 2000 against the judgment debtor/defendant/petitioner. The Execution Case No. 7 of 2003 remained pending and it appears, on 07.10.2023, the decree holder filed a petition praying therein to allow him to deposit the balance consideration money amounting to Rs.55,000/- which he could not deposit earlier. The learned Executing Court vide order dated 13.10.2023 allowed the petition which is under challenge before this Court.

3. Learned counsel for the petitioner submitted that the impugned order of the learned Executing Court is illegal as the same has been passed against the mandate of Section 28 of the Specific Relief Act, 1963 (in short "the Act"). The impugned order is not sustainable in view of the fact that learned Executing Court failed to see the attending circumstances including the conduct of the parties while granting permission for extension of time to deposit the consideration money. The learned Executing Court failed to take into consideration the fact that no explanation has been given by the decree holder for not depositing the balance consideration amount in terms of judgment dated 19.01.2001 and the permission granted for extension of time amounts to committing illegality by the learned Executing Court. The learned counsel further submits that the impugned order has been passed in total non-application of judicial mind and hence, it is not sustainable. Learned counsel further submitted that Section 28(1) of the Act makes it clear that Court does not lose its jurisdiction after grant of decree for specific performance of contract and does not become functus officio rather the suit is deemed to be pending till execution of sale deed. Further, it is only the Court which has passed the decree can exercise power, either for rescission of contract or for granting extension of time, to deposit the amount. In the present case, admittedly learned Sub Judge 4th, Bettiah has passed the decree but the decree holder, instead of seeking permission from the Court of Sub Judge-4th, Bettiah, filed petition before the learned Executing Court to deposit the consideration money and by implication, extension of time, which allowed the same and in the aforesaid background, it can be safely asserted that order granting permission by learned Executing Court i.e., Sub Judge-II, Bettiah is wholly beyo