JUDGMENT

Arun Monga, J. (Oral)

CM-7141-CII-2023

For the reasons stated in application, same is allowed. Annexures P-12 to P-15 are taken on record subject to all just exceptions.

Main case (O&M)

Petition herein is for setting aside impugned order dated 31.01.2023(Annexure P-9) passed by learned Civil Judge (Senior Division), Panchkula whereby objections filed by petitioner-judgment debtors No.1(i) to (iii) to the execution petition, were dismissed. Further sought to set aside impugned order dated 18.03.2023 (Annexure P-11)passed by learned Additional District Judge, Panchkula whereby appeal filed against aforesaid order dated 31.01.2023, was also dismissed.

2. The revision petition is premised on the averments that plaintiff/respondents filed suit for possession by way of specific performance on the basis of alleged agreement to sell dated 24.05.2005 (Annexure P-1)with a consequential relief of permanent injunction. Learned trial Court vide judgment/ decree dated 27.09.2011 (Annexure P-2), decreed the suit of plaintiff/ respondents and granted decree of specific performance of alleged agreement to sell dated 24.05.2005. Aggrieved, defendant No.1 preferred an appeal, which was dismissed vide judgment/ decree dated 16.03.2013 (Annexure P-3) by learned First Appellate Court. Still aggrieved, defendant No.1 filed RSA-2976-2013, which was dismissed vide order dated 22.04.2022 (Annexure P-4). Petitioners filed review application bearing RA- RS-25-2022 in RSA-2976-2013, which was also dismissed vide order dated 27.07.2022 (Annexure P-5). SLP preferred by the petitioners was also dismissed.

2.1. Respondent-decree holders filed execution application. Upon notice, petitioners filed objections to the same. Learned Executing Court vide impugned order dated 31.01.2023 (Annexure P-9) dismissed the said objections. Aggrieved, petitioners preferred appeal, which was also dismissed vide impugned order dated 18.03.2023 (Annexure P-11).

3. Learned counsel for petitioners would contend that learned Courts below failed to appreciate that in case of refusal of specific performance, where plaintiff has also made an alternative prayer for refund of sale consideration, plaintiff should have filed a suit for recovery and suit for specific performance with alternative prayer was not maintainable. Also contends that as per section 20 of SPECIFIC RELIEF ACT , 1963, Court is not bound to grant specific performance merely because it is lawful to do so. Further contends that petitioners are having no shop, house, land or any other source of earning. Defendant No.1 and his wife had already expired leaving behind three legal heirs i.e., one son and two daughters. Learned Executing Court had dismissed the objections of petitioners without granting any opportunity to lead evidence. Learned counsel for petitioners relies on S.P. Changalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs., reported in 1994 AIR (SC) 853, Food Corporation of India v. Surendra, Devendra &Mahendra Transport Co., reported in 2003 (1) RCR (Civil) 773, United India Insurance Co. Ltd. v. Rajendra Singh and others etc., reported in 2000 (2) RCR (Civil) 483 and Sameer Singh and another v. Abdul Rab and others, reported in 2015 AIR (Supreme Court) 591.

4. I have heard learned counsel for petitioner and gone through the record.

5. Impugned order dated 31.01.2023 (Annexure P-9) passed by learned Civil Judge (Senior Division), Panchkula, is premised, inter alia, on the following reasoning:

"6. By way of the present execution, decree holders seek to enforce the decree dated 27.09.2011 passed by the Ld. Trial Court in Civil Suit No.223 of 2005 for specific performance of agreement to sell dated 24.05.2005. Appeal filed by the predec