IMPORTANT POINT
Executing Court adopted correct approach of law in looking into facts that whether decree for specific performance can be executed by giving extension of time to decree holder to deposit balance sale consideration.

Mrs. Sunita Agarwal, J.—Heard Sri Pramod Kumar Jain, learned Senior Advocate for the petitioner and Sri U.S. Mishra, learned counsel for the respondent.

2. The writ petition is directed against the order of the revisional Court allowing Civil Revision No. 396 of 2002 holding that the executing court has exceeded in its jurisdiction in allowing the application 3Ga2 under Section 47 CPC read with Section 151 CPC filed by the respondents thereby dismissing the execution case.

3. Brief facts giving rise to the present writ petition are that an Original Suit No.1221 pf 1991 was filed by the respondent Harendra Pal Rahi for specific Performance of the agreement to sell alleged to have been executed by the petitioners. The contention was that against the sale consideration of Rs.1,18,000/-, the respondent had paid 90,000/- on 7.3.1991 i.e. on the date of execution of agreement. For the remaining 28,000/- the plaintiff has always been ready and willing but the defendants did not execute the sale deed. The suit was decreed ex-parte. The Trial Court had decreed the suit on 24.2.1996 directing the defendants to execute the sale deed within two months from the date of decree after receipt of the remaining sale consideration of Rs.28,000/-. It appears that the Execution Case No. 61 of 1996 was filed by the decree holder/respondent (in this writ petition). Notices were issued but the judgment debtor/petitioners did not appear. The execution case remained pending and only on 4.4.2000, the respondent deposited the remaining amount of sale consideration pursuant to the decree of year 1996. The judgment debtor/petitioners filed objection dated 9.7.2002 under Section 47 CPC that the decree was not executable as the vendee did not deposit the balance sale consideration within the time provided in the decree. No time extension application was filed before the trial court and the deposits were made after period of more than four years. The trial curt had allowed the application under Section 47 CPC on the ground that the decree holder did not deposit the balance sale consideration within the time stipulated in the decree. The decree of specific performance cannot be executed as it was a conditional decree and the conditions prescribed therein were not complied with. The bar under Section 16 of Specific Performance Act was invoked to conclude that the decree holder had failed to aver and prove that he had performed his part of the contract and has always been ready and willing to perform his part of the contract. He cannot get relief of specific performance of the contract.

4. The relief of performance of the contract would be treated to have been waived of by the vendee in case of non-payment of the balance sale consideration. It was held that the decree was not executable and the proceedings of Execution Case No 61 of 1996 was consigned to record.

5. The Revisional Court, however set aside the order of executing court on the ground that the application under Section 47 CPC was allowed on misinterpretation of the decree. The Executing Court could not have dropped the proceedings as time barred on the ground that the balance sale consideration was not deposited within the stipulated time for the reason that it was the responsibility of the judgment debtor to receive the balance amount of sale i.e. Rs.28,000/- from the decree holder/plaintiff. There was no specific direction in the decree to the plaintiff/decree holder to deposit the balance sale consideration either in the Court or to pay it to the defendants/judgment debtors. The Specific direction was given to the judgment debtors who were under obligation to comply with the decree and execute the sale deed pursuant to the decree after receipt of the balance sale consideration of Rs. 28,000/-.

6. Challenging the order of revisional Court, the submission of learned counsel for the petitioners are:-

(1) An Ex-parte decree was obtained by the decree holder and the execution of the same was filed