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2009 Supreme(Jhk) 1258
AIR 2010 Jhar 73
IN THE HIGH COURT OF JHARKHAND AT RANCHI
D.G.R. Patnaik, J.
Md. Hanif Khan – Appellant
Vs.
Naresh Prasad – Respondent
W.P.(C) No. 1502 of 2005
Decided On: 11.09.2009
For Appellant/Petitioner/Plaintiff: Satya Narayan Prasad and Sujeet Narayan Prasad, Advs.
For Respondents/Defendant: V. Shivnath, Sr. Adv., Sweety Topno and Anita Sinha, Advs.
The importance of readiness and willingness to perform a contract for specific performance, and the jurisdictional limitations of the executing court.
Headnote:
Specific Performance - Contract - Indian Contract Act, Specific Relief Act - Section 47, Section 151 of the Code of Civil Procedure
Fact of the Case:
The plaintiff filed a suit for specific performance of a contract, and a compromise decree was passed. The plaintiff later filed an execution case for the decree, which was objected to by the defendant.
Finding of the Court:
The court found that the decree was for specific performance of the contract within a stipulated period, and the plaintiff did not seek an extension of the period from the court. The execution proceeding was found to be barred by limitation and not in consonance with the decree.
Issues: The issues included the enforceability of the compromise decree, the readiness and willingness of the plaintiff to perform the contract, and the jurisdiction of the executing court.
Ratio Decidendi: The court emphasized the importance of readiness and willingness to perform the contract for specific performance and highlighted the provisions of Section 16 and Section 28 of the Specific Relief Act. It also considered the jurisdictional limitations of the executing court.
Final Decision: The writ application was allowed, and the impugned order was set aside. The execution proceeding was dismissed.
D.G.R. Patnaik, J.
1. Challenge in this writ application is to the order dated 13.01.2008 passed by the Sub-Judge-IX, Ranchi in Miscellaneous Case No. 1/2000 filed by the petitioner/defendant whereby the prayer of the petitioner made under Section 47 read with Section 151 of the Code of Civil Procedure for dismissing the Execution case No. 9/98, was rejected.
2. Counter affidavit has been filed on behalf of the respondents.
3. Heard learned Counsel for the petitioner and learned Counsel for the respondent.
4. Facts of the petitioner's case in brief is as follows:
An agreement dated 06.09.1990 was entered into by and between the plaintiff/respondents and the petitioner/defendant along with his sister under which the plaintiff had agreed to purchase 231/2 decimals of land in Plot No. 115 and 11 decimals in Plot No. 163, 164 and 166, total measuring 341/2 decimals situated under Khata No. 21 at village Samlong, P.S.- Namkum, District-Ranchi.
The plaintiff filed Title suit No. 94 of 1990 in the court of Sub-Judge-V, Ranchi against the defendant/petitioner for specific performance of contract and to execute and register the deed of sale.
During the pendency of the suit, the parties had effected a compromise between themselves and on the basis of the compromise petition, had jointly approached the trial court for a decree in terms of the compromise.
The trial court, after considering the terms contained in the compromise petition and the statements of the parties, decreed the suit on compromise by making the compromise petition as part of the decree. The terms and conditions of compromise as noted in the decree, included inter-alia -
(i) That the plaintiff had agreed to purchase 201/2 decimals of land from the defendant @ Rs. 13,500/- per katha of land and the defendant had agreed to execute the sale deed and get the same registered.
(ii) That the parties had agreed that the sale deed will be executed in pursuance of the agreement, within one month from the date of decree and the purchaser shall get the sale deed executed by the defendant within the period stipulated.
The decree was signed and declared by the trial court on 2.2.09.1994.
5. The plaintiff/decree holder, filed an Execution Case No. 9/98 in the court of the Sub-Judge-V at Ranchi for execution of the compromise decree against the defendant/petitioner, on 27.08.1998. Along with the petition for execution, the plaintiff/decree holder had also filed draft copy of the proposed sale deed for a total of 0.121/2 acres of land in Plot No. 115 of Khata No. 21 for a total consideration of Rs. 87,750/-.
6. In the execution proceeding, one Amulya Ratan Manjhi had appeared as an intervener claiming that he, having entered into an agreement for sale of part of the suit land with the plaintiff and having paid the consideration amount in advance, is entitled for the sale deed to be executed in his favour by the defendant/judgment debtor. The executing court allowed his intervention petition inspite of the objections raised by the plaintiff/decree holder and had also allowed the intervener to file the draft sale deed, and deposit the proportionate consideration amount.
7. The defendant/judgment debtor appeared in the execution proceeding and filed his petition under Section 47 read with Section 151 of the Code of Civil Procedure praying for dismissal of the execution proceeding on the ground that it was barred by limitation and that the plaintiff/decree holder, did not show his readiness and willingness to purchase the suit property within the period stipulated in the compromise decree and on the further ground that the execution case is inconsistent with the compromise decree in as much as in the execution case the plaintiff/decree holder had claimed for execution and registration of sale deed in respect of 24 decimals of land whereas in the compromise decree the area of total land was 201/2 decimals.
8. The plaintiff/decree holder/respondent contested the petitioner's prayer by filing his rej
