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HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
MS. JUSTICE REKHA BORANA, J
Puranmal Alias Purnashanker - Appellant
Versus
Lrs of Smt. Pushpa Devi - Respondent
CFA / 308 / 2024
Decided On : 07-03-2025
(A) Civil Procedure Code, 1908 - Sections relevant to the appeal process and stay applications - The court addressed the procedural aspects concerning the appeal against a decree for recovery of consideration amount without a specific performance prayer - The court observed that the defendant admitted to specific performance but the suit was deemed not maintainable without such relief. (Paras 1-8)
(B) Appeals and interim orders - The court emphasized the necessity of issuing notices and staying the execution of the lower court's judgment pending appeal - The court reiterated the importance of following proper procedural requirements in civil suits. (Paras 2-8)
Facts of the case:
The appellant challenged the decree passed by the learned Trial Court regarding the recovery of consideration amount, arguing that the suit was not maintainable as specific performance was not prayed for.
Findings of Court:
The court admitted the appeal and issued notices, staying the execution of the lower court's judgment and decree.
Issues: The main issue was whether a simpliciter suit for refund of consideration could be maintained without a prayer for specific performance.
Ratio Decidendi: The court ruled that a suit for refund of consideration without a specific performance prayer is not maintainable, highlighting the procedural requirements for civil suits.
Result: The execution of the lower court's judgment and decree was stayed.
ORDER :
REKHA BORANA, J.
1. Learned counsel for the appellant submits that on the same date i.e. 22.02.2024, four suits arising out of the identical facts were decided by the learned Trial Court. He submits that in S.B. Civil First Appeal No.306/2024 filed against the other identical suit being Civil Original Suit No.05/2017, an interim order has been passed by this Court on 13.01.2025.
2. In S.B. Civil First Appeal No.306/2024, on 13.01.2025, the Court observed and passed the following order:
“1. Learned counsel for the appellant submits that the learned Trial Court erroneously proceeded on to decree the suit of the plaintiff for recovery of consideration amount whereas the defendant had specifically admitted for specific performance of the contract i.e. to get the sale-deed registered in favour of the plaintiff.
2. Learned counsel further submits that even if the conclusion as drawn by the learned Trial Court of the defendant having 1/7th share in the property is considered, he had agreed to sell out 1/12th share in the complete property which clearly was less than his share.
3. Learned counsel further submits that even otherwise the suit in question was not maintainable as no relief for specific performance was even prayed for and in absence of such relief, a simpliciter suit for refund of the consideration amount could not have been maintained.
4. In view of the submissions made, Admit. Issue notice. Issue notice of the stay application also.
5. Notices be filed in two sets within a period of one week. On the same being filed, one set be given ‘dasti’ to learned counsel for the appellant for service through registered post acknowledgment due.
6. Postal receipts of ‘dasti’ notices be filed within a period of one week from the date of receipt of ‘dasti’notices.
7. Notices be made returnable on 13.02.2025.
8. Meanwhile, the effect, operation and execution of the judgment and decree dated 22.02.2024 passed by Additional District Judge No.3, Bhilwara Camp, Mandalgarh in Civil Regular Case No.05/2017 shall remain stayed.”
3. In view of the above, Admit. Issue notice. Issue notice of stay application also.
4. Notices be filed in two sets within a period of one week. On the same being filed, one set be given 'dasti' to learned counsel for the appellant for service through registered post acknowledgment due.
5. Postal receipts of the 'dasti' notices be filed within a period of one week from the date of receipt of 'dasti' notices.
6. Notices be made returnable on 07.04.2025.
7. Meanwhile, the effect, operation and execution of the judgment and decree dated 22.02.2024 passed by the Additional District Judge No.3, Bhilwara, Camp Mandalgarh in Civil Regular Case No.06/2017 (CIS No.14/2017) shall remain stayed.
8. Application for preponement of the date is disposed of
A suit for refund of consideration is not maintainable without a specific performance prayer, as per procedural requirements.
The court clarified that specific performance can be sought on agreements executed by a subset of coparceners, distinguishing it from prior cases based on the specific context of the agreement.
The court emphasized the necessity of protecting property during litigation to prevent irreparable harm, allowing a temporary injunction against alienation.
The court upheld the necessity of maintaining the status quo by staying the trial court's order for cancellation of a sale deed pending the appeal.
Point of Law : Provisions of section 28(1) of the Specific Relief Act, 1963 in light of the provisions of Order XX Rule, 12A of the CPC, and it was held that the provisions of Order XX, Rule 12A mand....
The court clarified that under Section 20 of the Specific Relief Act, discretion to deny specific performance must be based on clear evidence of hardship, which was not presented by the defendants.
Stay of proceeding in Execution Case – Appeal is considered to be continuation of suit and subject matter of dispute must be kept safe till attaining finality ofissue by way of judgment.
The court considered the existence of a prima facie case, the absence of irreparable loss to the respondent, and the balance of convenience in determining the outcome of the appeal.
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