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High Court Of Delhi
NARENDER SINGH OBEROI - Appellant
Versus
HARI DASS SOOD - Respondent
First Appeal (OS) 249 of 1986
Decided On : 03/09/1990
SPECIFIC PERFORMANCE - EXECUTION OF SALE DEED - PERMISSION OF LAND AND DEVELOPMENT OFFICER - NOT REQUIRED - LEASE DEED - COVENANT - ASSIGNMENT OF PART OF INTEREST - PERMISSION OF LAND AND DEVELOPMENT OFFICER - NOT REQUIRED - DECREE FOR SPECIFIC PERFORMANCE - WHOLE INTEREST - TRANSFER OF UNDIVIDED SHARE - NO OBJECTION FROM LAND AND DEVELOPMENT OFFICER - POSSESSION OF SPECIFIC PORTION - PARTITION DECREE - NO DIVISION OF LEASE - NO FORFEITURE OF LEASE.
Fact of the Case:
Narinder Singh Oberoi filed a suit for specific performance of an agreement for sale of 1/9th share of the property No. 4, Hailey Road, New Delhi in his favor against Hari Dass Sood and Amar Singh Sawhney. The trial court decreed the suit with a direction that Hari Dass Sood would obtain sanction of the Land and Development Officer and certificate of income-tax clearance from the Income Tax Officer and in case of failure on his part to do so, the decree shall be executed in the manner provided under Order 21, Rule 35 of the Code of Civil Procedure. On appeal, the Division Bench modified the decree and held that the permission of the Land and Development Officer was not required.
Finding of the Court:
The court held that in the facts and circumstances of the case, there was no question of frustration of the agreement as pleaded by the learned counsel for the respondent and consequently it cannot be said that application No. 235 of 1984 for execution of the sale-deed in favor of the decree-holder and Execution Application No. 64 of 1985 for filing a copy of the proposed sale-deed are premature.
Issues: 1. Whether permission of the Land and Development Officer is required before execution of the sale deed in favor of the decree-holder? 2. Whether the agreement for sale is frustrated due to the refusal of permission by the Land and Development Officer? 3. Whether the execution applications for execution of the sale deed and filing a copy of the proposed sale deed are premature?
Ratio Decidendi: 1. The court held that the permission of the Land and Development Officer is not required before execution of the sale deed in favor of the decree-holder as it is not an assignment of a part of the interest by Hari Dass and no permission of the Land and Development Officer is thus required. 2. The court held that there is no question of frustration of the agreement as pleaded by the learned counsel for the respondent and consequently it cannot be said that application No. 235 of 1984 for execution of the sale-deed in favor of the decree-holder and Execution Application No. 64 of 1985 for filing a copy of the proposed sale-deed are premature. 3. The court held that the execution applications for execution of the sale deed and filing a copy of the proposed sale deed are not premature.
Final Decision: The appeal is accepted. The direction by the learned Single Judge to the Registrar for obtaining permission of the Land and Development Officer before the execution of the sale-deed is set aside. The proposed draft sale-deed submitted by the decree-holder is ordered to be taken on record. The Registrar will proceed further to get the sale-deed executed in favor of the decree-holder and possession delivered to him. However, we make no order as to costs.
( 1 ) THIS appeal of Narinder Singh Oberoi is directed against the two orders dated October 31, 1986 by the learned Single Judge of this Court in Execution No. 90 of 1984. Vide order in Execution No. 90 of 1984 and Execution Application No. 317 of 1985 the learned Single Judge has directed the Registrar of this Court to obtain from the judgment-debtor an application to the Land and Development Officer for obtaining permission for transfer of the disputed portion of property No. 4, Hailey Road, New Delhi in favour of the decree-holder. It has further been directed that after obtaining the necessary permission as aforesaid the Registrar shall upon the judgment- debtor to execute the sale-deed failing which the sale deed shall be executed by the Registrar for and on behalf of the judgment-debtor. Vide other of even date the learned Single Judge dismissed E. A. 235 of 1984 and E. A. 64 of 1985 as premature.
( 2 ) IT would be necessary to give facts in brief to appreciate the arguments advanced at the Bar.
( 3 ) NARINDER Singh Oberoi filed Suit No. 511 of 1973 against ,hari Dass Sood and Amar Singh Sawhney for specific performance of an agreement dated 30th December, 1970 for sale of l/9th share of the property No. 4, Hailey Road, New Delhi in his favour. It was also prayed that incase defendant No. 1 failed to execute the sale-deed the same may be ordered to be executed by an official of the court. He also prayed for the delivery Of the portion in actual possession of defendant No. 1 with a further prayer that the plaintiff would be entitled to take possession of such portion of the property which may fall to the share of defendant No. 1. This suit was decreed on 25th October, 1976. with a direction that Hari Dass Sood defendant No. 1 would obtain sanction of the Land and Development Officer and certificate of income-tax clearance from the Income Tax Officer and in case of failure on his part to do so, the decree shall be executed in the manner provided under Order 21, Rule 35 of the Code of Civil Procedure.
( 4 ) THE appeal, RFA (OS) 3 of 1977, filed by Hari Dass Sood challenging the aforesaid judgment and decree was dismissed on 16th, December, 1983.
( 5 ) EARLIER, Hari Das Sood had filed Civil Suit No. 314 of 1967 against his brother Dr. Chiranji Lal for partition of the premises consisting 1/2 of the main Kothi and two back quarters in 4, Hailey Road, New Delhi and for rendition of accounts. Narinder Singh Oberoi was added as a defendant in the said suit pursuant to an order of Avadh Behari J. in view of the fact that he had filed a suit for specific performance against Hari Dass Sood in respect of his share in the premises known as 4, Hailey Road, New Delhi .
( 6 ) A preliminary decree for partition was passed on 10th August, 1972 in Suit No. 314 of 1967 and a final decree was passed on 7th August, 1981 holding that the portion marked a in the plan annexed to the report of the Local Commissioner would go to Hari Dass while the portion marked b would go to his brother Dr. Chiranji Lal.
( 7 ) IN Execution Case No. 90 of 1984 the decree-holder Mr. Narinder Singh Oberoi made a prayer that the possession of the portion marked a in the plan annexure y which was in physical possession of the judgment- debtor and his brother Chiranji Lal may be handed over to him.
( 8 ) THE learned counsel for the appellant has submitted that the learned executing court has committed a material error in coming to the conclusion that "as per decree itself the permission of the Land and Development Officer has to be obtained first in point of time before the sale deed is executed and then presented to the Sub Registrar of documents for registration". He has submitted that there was no such prayer by the plaintiff-decree-holder in the suit for specific performance filed by him against the judgment-debtor. He has further contended that though the trial Judge had specified in the decree that permission had to be obtained from the Land
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