The failure to comply with the conditions of a decree can render it unexecutable, and the court may not modify the decree if the non-compliance is attributable to the party seeking modification.

JUDGMENT

Harkesh Manuja, J. - The present revision petition has been filed against the order dated 18.02.2022 passed by the Court of Additional Civil Judge (Sr. Divn.), Phul, District Bathinda, whereby, an application filed at the instance of petitioner-decree holder, invoking Section 152 read with Section 153 CPC, seeking modification of the judgment and decree dated 17.08.2016 has been dismissed.

2. Brief facts of the case are that the petitioner filed a suit for specific performance against respondent, based on an agreement to sell dated 23.05.2011. During pendency of the suit, both the parties entered into a settlement resulting into grant of decree for possession in favour of petitioner, by the Court of learned Additional Civil Judge (Senior Divn.), Phul. The operative part from the said judgment dated 17.08.2016 is reproduced herein as under:

'7. Accordingly, in view of the statement of the defendant on the record, the suit of the plaintiff stands decreed in terms of Order 12 Rule 6 Civil Procedure Code, 1908 for specific performance of agreement to sell dated 23.05.2011. The plaintiff is granted a period of 30 days to make payment of the remaining sale consideration to the defendant upon which, the defendant shall have the period of 30 days to execute the sale deed in favour of the plaintiff. In case, the defendant failed to execute the sale deed in favour of the plaintiff despite expiration of the total period of 69 days so granted above, the plaintiff shall have the right to seek execution of the decree in accordance with law. In that eventuality, the defendant is also restrained from alienating the suit property to any other person, except to the plaintiff during the period of first 30 days or till the execution of the sale deed, as the case may be. In case, the plaintiff failed to make the payment of remaining sale consideration to the defendant within the fixed period of 30 days, the suit of the plaintiff shall be deemed to have been dismissed in toto. Reader to prepare decree sheet. File be consigned to the record room after due compilation. "

3. As per the judgment dated 17.08.2016, the petitioner was to deposit balance sale consideration with the respondent-defendant within a period of 30 days and thereafter, the sale deed was to be executed in his favour. It is a matter of record that petitioner-plaintiff did not make payment of balance sale consideration to the respondent-defendant as directed vide judgment dated 17.08.2016. Resultantly, no sale deed could be executed in his favour by the respondent.

4. After an explained delay of almost 2 years, the petitioner moved an application under Section 152/153 of the Code of Civil Procedure, seeking modification of the judgment and decree dated 17.08.2016, praying for grant of decree for refund of earnest money instead of specific performance. It was pleaded in the application that as the respondent could not remove the debris and waste material lying over the property in question, as such, no sale deed could be executed in favour of the petitioner and therefore, in fact at this stage petitioner was not interested for grant of decree for possession by way of specific performance, accordingly, he prayed for refund of earnest money. It is the said application which was dismissed by the learned trial Court vide its order dated 18.02.2022, which has now been impugned in the present revision petition.

5. Learned counsel for the petitioner submits that at the time of settlement before the trial Court, respondent-defendant suffered a statement to the effect that he was ready and willing to execute sale deed in favour of petitioner as per terms and conditions of the agreement to sell dated 23.05.2011. He further submitted that as per condition No.5 of the said agreement, the possession of the suit land was to be handed over on execution of sale deed, after removal of all the debris and waste materials. Learned counsel for the petitioner also submitted that even at this stage time