The discretionary nature of the court's power under Section 28 of the Specific Relief Act and the absence of a rider clause in the decree.

JUDGMENT

Raj Mohan Singh. J. - Petitioners have preferred this revision petition against the order dated 13.03.2019 passed by the Civil Judge (Jr. Divn.) Rajpura vide which the application under Section 28 of the Specific Relief Act (hereinafter to be referred to as 'the Act') was dismissed.

2. A suit for possession and permanent injunction was filed by the plaintiffs. The trial Court decreed the suit of the plaintiffs vide judgment and decree dated 16.02.2017. Defendants No.1 to 4/petitioners were directed to execute the sale deed in favour of the plaintiffs as per agreement Ex.P-1 within two months after receiving the balance sale consideration along with other costs from the plaintiffs, failing which the plaintiffs were held entitled to get the sale deed executed through the process of the Court. Petitioners were also restrained from alienating the suit land in any manner to any other person except the plaintiffs.

3. Against the judgment and decree dated 16.02.2017, an appeal was preferred by the defendants/petitioners and the same was dismissed by the lower Appellate Court on 12.07.2017.

4. The execution was filed by the plaintiffs/respondents on 18.09.2017. The application under Section 28 of the Act was filed by the defendants/petitioners on the ground that the decree holders did not comply with the decree dated 16.02.2017 by not paying the entire sale consideration to the judgment-debtors, nor deposited the same in the Court. The executing Court vide the impugned order dismissed the application by noticing some incriminating facts.

5. Learned counsel for the petitioners by relying upon Prem Jeevan vs. K.S. Venkata Raman and another, 2017 AIR SC 623 contended that the Court must ensure strict compliance to the conditions stipulated in the decree which has the effect of nullifying the decree.

6. I have considered the submissions made by learned counsel for the petitioners.

7. Perusal of the concluding part of the decree dated 16.02.2017 would show that there was no rider placed by the Court that in the event of default in not deposing the amount within two months by the plaintiffs, the suit was to be dismissed.

8. In Prem Jeevan's case (supra) the issue for consideration before the Hon'ble Apex Court was in respect of a case where a decree for specific performance was granted in favour of the plaintiff on 25.09.2008, directing the defendant to execute and register the sale deed in favour of the plaintiff in respect of suit land within two months from the date of passing of the decree after receipt of balance sale consideration. It was also ordered that in case defendant refused to receive the balance sale consideration with interest, the plaintiff would be at liberty to deposit the amount in Court and obtain the sale deed through process of the Court. Plaintiff claimed to have issued a cheque on 04.12.2008 for the amount in question, but the same was returned, as not accepted by the judgment debtor and thereafter, decree holder applied for execution after about two years of non-acceptance of the cheque. Judgment debtor filed an application before the Executing Court on the ground that since the amount was not deposited by the decree holder within the stipulated time, therefore, the decree has become in executable in the absence of extension of time. Keeping in view the period of about 2 years in filing the execution after returned of the cheque, the Hon'ble Apex Court found that there was no document to show that there was any enlargement of time granted by the Court for paying the purchase money under Section 28(1) of the Specific Relief Act. In the absence of any application for extension of time that was computed to be about 2 years, 2 months, the Hon'ble Apex Court held that the execution for obtaining specific performance was not maintainable. However, the Hon'ble Apex Court has also observed that in case where two views are possible on the facts of the case, the one, which would sustain the decree, must prevail.

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