Mrs. Rekha MIttal, J.CM No.21754-CII of 2016

Allowed as prayed for.

Annexures P7 and P8 are taken on record subject to just exceptions.

Disposed of accordingly.

MAIN CASE

2. The present petition lays challenge against order dated 23.09.2016 (Annexure P6) vide which application of the petitioner filed under Section 28 of the Specific Relief Act, 1963 for rescission of agreement to sell dated 07.07.2007 and decree dated 01.09.2010 has been dismissed.

3. Counsel for the petitioner has submitted that Sh. Babu Ram (Judgment-debtor) was owner of residential house in dispute and executed an agreement to sell on 07.07.2007 in favour of Sandeep Bansal (respondent No.1) for a sale consideration of Rs.5 lacs and alleged to have received a sum of Rs.1 lac as earnest money and the sale deed was to be executed on 07.01.2008. The time for execution of sale deed was extended up to 21.04.2008. Sandeep Bansal filed civil suit No.495 of 2008 on 15.11.2008 seeking specific performance of agreement to sell dated 07.07.2007. Babu Ram did not contest the proceedings that ultimately culminated in judgment and decree dated 01.09.2010. The respondent – decree-holder did not make an attempt to get the sale deed executed and registered nor deposited the balance sale consideration of Rs.4 lacs within a period of 3 months in terms of the decree passed by the Court. The decree-holder filed the execution petition No.35/2011 on 15.03.2011. He did not deposit the balance sale consideration even by that time. A draft sale deed was filed in the Executing Court on 01.09.2012 and the decree-holder was directed to deposit balance sale consideration upto 06.10.2012. It is further argued that balance sale consideration was eventually deposited in the Court on 15.03.2013 and the sale deed was executed in favour of the decreeholder by a Local Commissioner (Isham Singh) Reader of the Court on 17.12.2013. The Court issued warrants of possession in favour of the decree-holder and the petitioner for the first time came to know about the ex parte decree dated 01.09.2010 when bailiff of the Court visited the disputed house to deliver possession to the decree-holder on 16.03.2015.

4. It is argued that the petitioner purchased the property in dispute from Babu Ram vide registered sale deed No.3078 dated 20.07.2011 and as such, she is in possession of the house as owner. It is vehemently argued that as the respondent/decree-holder failed to deposit the balance sale consideration within the stipulated period of 3 months as per the decree dated 01.09.2010 and there is no order passed by the Executing Court extending time for deposit of balance sale consideration vide endorsement made on the application dated 14.03.2013 (Annexure P3), the agreement to sell dated 07.07.2007 and the decree dated 01.09.2010 are liable to be rescinded by setting-aside the order impugned. It is further argued that the Court below has wrongly relied upon the judgment of this Court “Jarnail Singh(deceased) through LR vs Manjit Singh and others”, 2015(4) PLR 121 to negate plea of the petitioner. In support of his contention, he has relied upon judgment of Hon’ble the Supreme Court of India “P.R.Yelumalai vs. N.M. Ravi”, 2015(2) RCR (Civil) 585.

5. I have heard counsel for the petitioner and perused the paperbook particularly the order impugned.

6. Before adverting to the factual controversy and the submissions made by counsel for the petitioner, it is appropriate to take note of the observations of Hon’ble the Supreme Court of India in “Chanda (dead) through LRs vs. Rattni and another”,2007(2) RCR (Civil) 534 wherein the Court in para 9 of the judgment has held, quoted thus:-

“The decree for specific performance has beendescribed as a preliminary decree. The power under Section28 of the Act is discretionary and the Court cannotordinarily annul the decree once passed by it. Although thepower to annul the decree exists yet Section 28 of the Actprovides for complete relief to both the parties in terms ofth