The finality of a decree after the decision by the higher courts and the executability of the decree based on the deposit of the remaining sale consideration.

JUDGMENT

Manoj Bajaj, J. - Petitioner (judgment debtor) has challenged the order dated 12.05.2022 (Annexure P-8) passed by Additional Civil Judge (Senior Division) Kurukshetra in execution petition No.2/2018, whereby his application for dismissal of execution petition and rescinding the contract was dismissed.

2. Briefly, the facts of the case are that the plaintiff (respondent) brought a suit for specific performance of contract dated 07.11.2006 executed by defendant, whereby he agreed to sell his land measuring 13 kanals 11 marlas, being 1/4th share of the total land measuring 54 kanals 3 marlas comprised in khewat No.51, khatoni No.109, kittas 10 as per jamabandi for the year 2001-2002 with tubewell, situated at village Lohara, Teshil Thanesar, Sub Tehsil Ladwa, District Kurukshetra for a total sale consideration of Rs.10 lacs. Pursuant to this agreement, plaintiff had paid a sum of Rs.5 lacs to the vendor as earnest money, and they agreed to execute the sale deed on 20.02.2007, however, in the event of failure on the part of the defendant, he agreed to return double the amount of earnest money to the plaintiff. As per the plaintiff, he was throughout ready and willing to perform his part of the contract, but defendant failed to keep his words, who also threatened to alienate the suit property, thereby compelling the plaintiff to seek decree for permanent injunction.

3. During pendency of the said suit, the material date of execution of registration of sale deed i.e.20.02.2007 expired, therefore, the suit for injunction was withdrawn, and the present suit for possession by way of specific performance of contract was filed.

4. The suit was contested by the defendant by filing his written statements, wherein he took preliminary objections regarding its maintainability, concealment of facts etc. and on merits, denied the execution of the agreement to sell. By refuting the other averments in the plaint, it was prayed that the suit be dismissed.

5. After completion of the pleadings, the trial commenced and the suit filed by plaintiff was dismissed through judgment and decree dated 31.10.2013, however, dissatisfied with the said decree, plaintiff filed an appeal and the same was accepted by first appellate Court vide judgment and decree dated 26.04.2016.

6. Aggrieved against the judgment and decree dated 26.04.2016 passed by the first appellate Court, the vendor preferred an appeal bearing RSA No.3817-2016 and the same was dismissed by this Court on 07.11.2017, and this decision was further upheld by Hon'ble Supreme Court on 19.02.2018.

7. During the pendency of the execution petition, the judgment debtor moved an application for dismissal of execution petition of decreeholder and rescinding the contract, which was dismissed on 12.05.2022. Hence this revision petition.

8. Learned counsel for the petitioner/judgment debtor has argued that while decreeing the suit of the plaintiff, a clear and specific direction was issued to the decree holder to deposit the balance amount of sale consideration within a period of two months and since neither that condition was complied with by the decree holder nor any extension of time was sought by him, therefore, the decree cannot be executed. He submits that the petitioner/judgment debtor had filed an application before the executing court in terms of Specific Relief Act, 1963 for rescission of contract because of failure of decree holder to perform his part of the contract, but the said application has been erroneously dismissed by ignoring the law on the subject in 'Ravi Setia Vs. Madan Lal and others', (2019) 9 SCC 381. He submits that the impugned order be set aside and the application filed by the judgment debtor for rescission of the contract be accepted.

9. On the other hand, learned counsel for the respondent/decree holder has argued that the agreement to sell executed between the parties was against the total sale consideration of Rs.10 lacs, and out of it Rs.5 lacs were paid as earnest money,