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1999 Supreme(P&H) 875
PUNJAB & HARYANA HIGH COURT
N.K.Agrawal, J.
Rajinder Kaur
Versus
S.K.Malhotra
Civil Revisions No. 792 of 1999,
Decided On : AUGUST 19, 1999
The stay of a decree by an appellate Court relieves the decree-holder from the liability to deposit the balance sale consideration within the time specified in the decree.
Headnote:
SPECIFIC PERFORMANCE - DECREE - TIME FOR DEPOSIT OF BALANCE SALE CONSIDERATION - EXTENSION - POWER OF COURT - STAY OF DECREE - EFFECT - MERGER OF DECREES - RECIPROCAL OBLIGATIONS - STAY OF DECREE RELIEVING DECREE-HOLDER FROM LIABILITY TO DEPOSIT BALANCE SALE CONSIDERATION.
Fact of the Case:
Plaintiff filed a suit for specific performance of a contract dated December 8, 1983. The suit was decreed on December 24, 1987. The defendant was directed to get the sale deed of the suit property executed from the Improvement Trust, Jalandhar in her favour within six months and also to obtain an Income-tax Clearance Certificate. The defendant was thereafter required to execute a sale deed in favour of the plaintiff in terms of the contract. The plaintiff was directed to deposit in the Court the balance sale consideration of Rs. 1,30,000/- within six months "failing which his suit shall be deemed to have been dismissed ab initio."
Finding of the Court:
The appellate Court by staying the decree of the trial Court had, in fact, absolved the decree-holder of the liability to deposit the balance sale consideration within six months. The trial Court had passed the peremptory order on December 24, 1987. The period of six months was to expire on June 23, 1988. The decree of the trial Court was stayed by the appellate Court by order dated February 12, 1988. As the order of the trial Court came to be stayed before the expiry of six months, the decree-holder was no more required to deposit the balance sale consideration. The time stopped running as soon as the decree of the trial Court was stayed. It is not disputed that the appellate Court had the authority and jurisdiction to interfere in a matter where the trial Court passed a peremptory order. Therefore, the stay order dated February 12, 1988 passed by the appellate Court put the peremptory order under suspension. The appellate Court had all the powers to pass fresh orders regarding the deposit of the balance sale consideration. It granted three months time. The decree-holder deposited the balance sale consideration within the time granted by the appellate Court.
Issues: 1. Whether the trial Court had the power to extend the time for the deposit of the balance sale consideration in light of the peremptory order passed by it? 2. Whether the decree-holder was bound to deposit the money in view of the unambiguous peremptory order? 3. Whether the appellate Court, by staying the decree of the trial Court, relieved the decree-holder of the liability to deposit the balance sale consideration within six months?
Ratio Decidendi: 1. The Court can extend the time granted in the decree having resort to the provisions of Sec. 148, Civil Procedure Code, if there was no direction in the decree that on failure to deposit the amount within the specified time, the suit shall be deemed to have been dismissed. 2. The decree-holder was not required to deposit the balance money after the decree of the trial Court was stayed by the appellate Court. The peremptory order became inoperative and unenforceable after it was stayed by the appellate Court. 3. Where a decree imposed obligations on both sides and obligations are so conditioned that the performance by one is conditional on the performance by the other, the obligations are reciprocal and are inter-linked so that they cannot be separated. If the defendants, by obtaining the stay order from the High Court, relieve themselves of the obligations to deliver possession of the properties, the plaintiff/decree-holder must also be deemed thereby to be relieved of the necessity on depositing the money so long as the stay order continues.
Final Decision: Revision petition dismissed.
1. This is a revision petition by the defendant/judgment-debtor against the order dated November 13, 1998 passed by the Civil Judge (Senior Division), Jalandhar, whereby the objection petition filed by the judgment-debtor in the execution proceeding has been dismissed.
2. The plaintiff/decree-holder had filed a suit for specific performance of contract dated December 8, 1983. The suit was decreed on December 24, 1987. The defendant/judgment-debtor was directed to get the sale deed of the suit property executed from the Improvement Trust, Jalandhar in her favour within six months and also to obtain an Income-tax Clearance Certificate. The defendant was thereafter required to execute a sale deed in favour of the plaintiff in terms of the contract. The plaintiff was directed to deposit in the Court the balance sale consideration of Rs. 1,30,000/- within six months "failing which his suit shall be deemed to have been dismissed ab initio."
3. Operative part of the order of the learned Senior Sub Judge reads as under :-
"In the result, this suit is decreed with costs in favour of the plaintiff and against the defendant. The defendant is directed to get the sale deed of the suit property executed and registered from the Jullundur Improvement Trust in her favour within six months. She is also directed to obtain the income tax clearance certificate from the Income-tax Department within six months and thereafter to execute and register the sale deed in favour of the plaintiff in terms of the agreement Ex. P.1. The plaintiff is directed to deposit in Court, the balance sale consideration of Rs. 1,30,000/- within six months failing which his suit shall be deemed to have been dismissed ab initio. Conveyance charges shall be borne by the plaintiff. If the defendant fails to comply with these directions, then the plaintiff would be at liberty to get the sale deed executed and registered in his name in terms of this decree through the agency of the Court. After the sale deed has been executed and registered in terms of this decree, the balance sale price of Rs. 1,30,000/- after deducting from it, costs of the suit and such other expenses and charges as directed by the Court, shall be paid to the defendant. But, if she does not obtain the Income-tax Clearance Certificate, then the balance sale price shall remain deposited in the Court and shall be at disposal of the income-tax authority to be disposed of under their directions, subject to the taxation liability of the defendant. Decree be drawn. File be consigned.
4. Defendant filed an appeal against the order of the learned Sub Judge before the District Judge. An application under Order 41, Rule 5 read with Sec. 151, Civil Procedure Code, was also filed by the defendant for staying the execution of the decree. The District Judge vide order dated February 12, 1988 stayed the execution of the decree of the trial Court subject to the condition that the defendant shall furnish a security within one month to the satisfaction of the Executing Court. The order reads as under :-
"Heard. Appeal is admitted. It be registered. Notice to the respondents be issued for 6-4-1988. Record be summoned.Notice of the stay application be also issued to the respondents for the date fixed. The execution will stand stayed if the appellant furnishes security in the executing court undertaking to perform the decree. Security be furnished within one month to the satisfaction of the Executing Court."
The defendant, however, failed to furnish the requisite security. The defendants appeal was dismissed with costs by the District Judge on March 11, 1995.
5 Learned counsel for the petitioner/judgment-debtor has argued that the plaintiffs suit stood dismissed automatically in the light of the peremptory order. The trial Court had passed a clear order that the suit shall be deemed to have been dismissed ab initio if the plaintiff failed to deposit in Court, the balance sale consideration of Rs. 1,30,000/- within six m
