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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
T. RAVINDRAN, J.
Abraham & Another - Petitioner
Versus
Ganesan Aasari (Died) - Respondent
C.R.P.(NPD) (MD) Nos. 1707 & 1708 of 2008; M.P.(MD) Nos. 1 of 2008 & 1 of 2009
Decided On : 05-12-2018
Specific Relief Act, 1963 - Section 28 - Sale Deed – Property - Materials placed on record, it is seen that deceased first respondent herein, had laid suit against revision petitioners and two others for relief of specific performance - Abovesaid suit, after contest, is found to have been disposed of in favour of deceased first respondent herein, by Judgment and Decree, whereby, deceased first respondent herein had been directed to deposit balance sale consideration of Rs.1,00,000/- Court, and a further direction had been given that defendants, namely, revision petitioners and two others, on receipt of abvovesaid sum of Rs.1,00,000/- they should execute sale deed in favour of deceased first respondent herein in respect of suit properties on or before 09.09.2004 and in event of their failure, a direction had also been given to deceased first respondent to approach Court for execution of sale deed and accordingly, disposed of suit in favour of deceased first respondent herein – Held, When deceased first respondent had thrown blame on Advocate concerned for not depositing amount and at present in civil revision petition, Advocate concerned had repudiated case of deceased first respondent and when counterfoil of the challan/Ex.P2 itself is being under challenge as to whether same had been entrusted by Advocate to deceased first respondent, as same had been challenged by Advocate concerned and when by way of impugned order, Court had impliedly admitted allegations putforth against Advocate by deceased first respondent, in all, by way of same, Court had determined issues involved in matter, without providing any opportunity to Advocate concerned and when as of now, Advocate concerned had chosen to implead himself and also projected his case, in my considered opinion, matter should be remitted back to Court below for providing an opportunity to all parties involved in matter to adduce further evidence - Impugned orders, passed, are set aside and matter is remitted back to Court below with a direction to Court below to implead Advocate concerned as a party respondent in application preferred by deceased first respondent for enlargement of time and thereafter, provide further opportunity to both parties, including Advocate concerned, to adduce further evidence in matter with reference to their respective cases, as per law and thereby, determine case on basis of materials placed on record by respective parties in accordance with law – Appeal Disposed Of.
The civil revision petition in C.R.P.(NPD) (MD) No.1707 of 2008 is directed against the fair and decreetal orders, dated 06.08.2008, passed in I.A.No.24 of 2007 in O.S.No.140 of 1993, on the file of the I Additional Subordinate Court, Nagercoil.
2. The civil revision petition in C.R.P.(NPD) (MD) No.1708 of 2008 is directed against the fair and decreetal orders, dated 06.08.2008, passed in I.A.No.25 of 2007 in O.S. No. 140 of 1993, on the file of the I Additional Subordinate Court, Nagercoil.
3. From the materials placed on record, it is seen that the deceased first respondent herein, namely, Ganesan Aasari, had laid the suit against the revision petitioners and two others for the relief of specific performance. The abovesaid suit, after contest, is found to have been disposed of in favour of the deceased first respondent herein, by Judgment and Decree, dated 09.07.2004, whereby, the deceased first respondent herein had been directed to deposit the balance sale consideration of Rs.1,00,000/- in the Court, on or before 09.08.2004 and a further direction had been given that the defendants, namely, the revision petitioners and two others, on receipt of the abvovesaid sum of Rs.1,00,000/- they should execute the sale deed in favour of the deceased first respondent herein in respect of the suit properties on or before 09.09.2004 and in the event of their failure, a direction had also been given to the deceased first respondent to approach the Court for the execution of the sale deed and accordingly, disposed of the suit in favour of the deceased first respondent herein.
4. It is seen that the deceased first respondent had not deposited the amount within the time as directed by the Court below by Judgment and Decree passed in O.S.No.140 of 1993, dated 09.07.2004. Further, it is seen that seeking enlargement of time to deposit the abovesaid amount, the deceased first respondent had moved I.A.No.24 of 2007, under Sections 148 and 151 of the Code of Civil Procedure and with reference to the abovesaid application, according to the deceased first respondent, as against the Judgment and Decree passed in O.S.No.140 of 1993, dated 09.07.2004, no appeal had been preferred by the revision petitioners and two others. Further, according to him, after the decree had been passed in the abovesaid suit, he had given the balance sale consideration of Rs.1,00,000/- to his Lawyer, who conducted the case, to be deposited in the Court within the time fixed for deposit and he was under the bona fide belief that his Lawyer had deposited the amount in the Court and when he contacted his Lawyer, he was informed that the abovesaid sum had been deposited in the Court in time and he had been asked to wait for two more months so as to see whether the revision petitioners and two others are executing the sale deed in terms of the Decree or not and inasmuch as the revision petitioners and two others had not come forward to execute the sale deed, even after the time fixed in the Decree had expired, it is his case that he had instructed his Lawyer to file the execution petition, however, his Lawyer had delayed the matter and accordingly, it is his case that when he raised a doubt whether the abovesaid sum of Rs.1,00,000/- had been deposited in the Court or not, his Lawyer gave him the counterfoil of the challan issued by the Court, dated 17.08.2004, which has been produced along with the application and accordingly, it is his case that on the basis of the counterfoil of the challan, he was convinced and also according to him, he was informed by his Lawyer that the execution petition had been filed and the same is pending and thereafter, when he contacted his Lawyer to know the progress of the execution petition, no proper reply came from his Lawyer and after waiting for a considerable time, as no fruitful result came out, it is his case that he made further enquiries and learnt to his astonishment that no execution petition had been filed and he also came to und
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