IMPORTANT POINT
Agreement to sell—Execution of time—Even if balance sale consideration is not deposited in the stipulated period, time can be extended.

S. N. Aggarwal, J. Nanha petitioner was the owner of land measuring 7 Kanals 1 Marla for which he had executed an agreement of sale dated 27.12.1991 in favour of Risala, respondent No.1. The sale consideration was Rs.1.5 lacs. The petitioner did not execute the sale deed in compliance with the agreement of sale dated 27.12.1991 on which Risala, respondent filed a civil suit for specific performance of agreement of sale dated 27.12.1991. The suit was decreed by the Court of Civil Judge (Senior Division), Kaithal, vide judgment and decree dated 15.1.1999.

2. The following was the operative part of the judgment dated 15.12.1999:-

“It is ordered that the suit of the plaintiff succeeds and accordingly a decree for possession qua the suit land by way of specific performance of the aforesaid agreement, is hereby passed in favour of the plaintiff and against the defendants with costs. The defendants are hereby granted one month time from the date of this judgment to get the sale-deed executed in favour of the plaintiff qua the suit land subject to receipt of balance sale consideration of Rs.30,000/-. However, the expenses regarding registration and stamp etc. shall be borne by the plaintiff. Since after the execution of the agreement to sell dated 27.12.1991, by dint of judgment and decree dated 28.2.1992 handed down in civil suit No.279 of 1992, titled Smt. Krishani Vs.Nanha, defendant No.2, Smt. Krishani wife of defendant No.1, Nanha has become owner of the suit land, so she is also directed to join defendant No.1 in due execution and registration of the sale deed.”

3. An appeal was filed by the petitioner but it was dismissed on 2.5.1993.

4. Respondent No.1 moved an application 29.5.2003 for permission to deposit the balance sale consideration. That application was allowed by the Court on 15.11.2003. The respondents had deposited the balance sale consideration on 17.11.2003.

5. The petitioner had also filed an application under Section 28 of the Specific Relief Act with the prayer that agreement dated 27.11.12991 be rescinded because of non payment of balance sale consideration within the stipulated period. That application was dismissed by the learned trial Court vide impugned order dated 4.6.2005 and the balance sale consideration deposited by the decree holder on 19.11.2003 was approved.

Hence, the present petition.

6. The submission of learned counsel for the petitioner was that Risala,respondent No.1-decree holder was required to deposit the balance sale consideration within a period of one month from the passing of judgment and decree dated 15.1.1999 but he failed to deposit the amount in the stipulated period. Therefore, he had failed to comply with the judgment and decree dated 15.1.1999. He is not entitled to the extension of time as a right had accrued to the petitioner under Section 28 of the Specific Relief to get the agreement of sale deed dated 27.12.1991 rescinded. Hence, it was prayed that the impugned order dated 4.6.2005 be set aside. Reliance was placed on the judgments of this Court reported as Onkar Nath Versus Basheer and others, (1985-2) Punjab Law Reporter 432 and Chanda Versus Ratini and another, (1999-3) Punjab Law Reporter 123. In both these judgments, it was held that if the balance sale consideration was not deposited within the stipulated period, the petitioner becomes entitled to get the agreement of sale rescinded.

7. On the other hand, the submission of the learned counsel for respondent No.1decree holder was that the judgment and decree were passed on 15.1.1999. The petitioner had filed the appeal on 15.2.1999. Operation of the judgment dated 15.1.1999 was stayed by the Appellate Court on 19.2.1999. The appeal was dismissed by the learned Appellate Court on 2.5.2003. The respondent had filed an application for permission to deposit the balance sale consideration on 29.5.1993 which was allowed by the Court on 15.11.2003 subject to risk and responsibility of the decree holder. The balance sal