JUDGMENT

BISWANATH RATH, J. - This writ petition arises against an order passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack in T.S. No. 484 of 1996 whereby the trial Court while allowing an application under Order 28 (3) of the Specific Relief Act at the instance of opposite party No. 1 (plaintiff in the Court below) rejected the application under Section 28(1) of the Specific Relief Act at the instance of opposite party No. 2 (defendant in the Court below).

2.The short background involved in the case is that the plaintiff-opposite party No. 1 filed a Title Suit bearing No. 484 of 1996 against defendant therein the present opposite party No. 2 for specific performance of contract dated 19.02.1996 for sale of the suit land. Pursuant to service of notice, the opposite party No. 2 appeared in the suit land filed her written statement along with a counter claim claiming compensation for obstruction in her right over the disputed property for pendency of the Title Suit.

The suit was finally concluded by the judgment dated 30.06.1999 with the following order.

“Order

The suit is decreed on contest against the defendant with cost, but the counter claim of the defendant is dismissed without cost. The defendant is directed to sale the suit land on receipt of balance consideration of Rs. 2,00,000/- (Rupees two lakhs) from the plaintiff and execute and register the sale deed at the cost of the plaintiff in his favour within a period of two months hence, failing which the plaintiff shall have the right to get the registered sale deed obtained through Court. Advocates’ fees at the contested scale.”

3.Consequent upon the judgment indicated hereinabove, a decree in the light of order passed in the judgment was also passed. It is at this stage, the plaintiff filed an application under Section 28(3) of the Specific Relief Act with the following prayer:

“Prayer

The plaintiff prays to Hon’ble Court to be pleased to allow the plaintiff to deposit the balance consideration amount of Rs. 1,80,796.25/- in favour of the defendant and thereafter the required sale Deed to be executed and registered by this Honn’ble Court in respect of the suit property in favour of the plaintiff.

And after execution of this sale Deed Khas possession of the Schedule property he delivered through Court by appointing a Civil Court Commissioner to the plaintiff.”

Following such developments and during pendency of the First Appeal bearing No. 447 of 1995, the plaintiff filed an amended application under Section 28(3) of the Specific Relief Act on 3.02.2008. Consequent upon this development, the defendant Nos. 1,2 & 3 of the Specific Relief Act. The defendant No. 1 also simultaneously filed an application under Section 28(1) of the Specific Relief Act with the following prayer.

“Prayer

Under the aforesaid facts and circumstance, it is therefore most humbly prayed that this Hon’ble Court may graciously be pleased to allow this petition by rescinding the contact of sale.

And for this act of kindness the defendant as in duty bound shall ever pray.”

4.In the first round of litigation, by order dated 13.02.2009, the lower Court disposed of the matter allowing the application under Section 28(1) of the Specific Relief Act at the instance of the defendant No. 1 and rejected the application under Section 28(3) of the Specific Relief Act at the instance of plaintiff-opposite party No. 1. This order having been challenged in the High Court by way of writ petition bearing W.P.(C) No. 7140 of 2009.

This Court by order dated 29.10.2010 passed the following order:

“Heard learned counsel for the parties.

In this writ petition, challenge has been made to the order dt. 13.03.2009 passed by the learned 2nd Addl. Civil Judge (Senior Division), Cuttack in T.S. no. 484 of 1996 (F.D.) rejecting the plaintiff’s application under Section 28(3) of the Specific Relief Act for execution of the deed, directing defendant No. 1 to refund Rs. 1,00,000/- with 6% interest while allowing the petition