First of all, it is not their case that the petitioner herein did not pay the balance sale consideration within the time stipulated as contemplated under the decree. On the other hand, it is their case that there was an out of court settlement, whereby the parties have agreed to cancel the suit sale agreement and consequently to annul the decree. In my considered view, while considering the scope of Section 28 as discussed above, those two grounds are not available to the respondents herein to file an application under Section 28 of the Specific Relief Act for rescinding the contract as well as annulling the decree. Therefore, the very application filed under Section 28 of the Specific Relief Act is not maintainable as the reasons stated by the respondent in their petition before the Court below are not any way near the reasons contemplated under Section 28(1) of the Specific Relief Act. Moreover, the said application can be made only before the Court which passed the decree and not in an execution proceedings as has been done in this case. In my considered view, application under Section 28 is not maintainable before the execution court, especially when such court is only to execute the decree and not empowered to annul or rescind the same. It is well established that the executing court cannot go beyond the decree. When that being the settled position of law, I fail to understand as to how the application under Section 28 of the said Act was entertained by the execution court. Further, the application under section 28 has to be made only in the same suit in which the decree is passed. Thus, it is clear that the said application cannot be made before the court, which is executing such decree. Moreover, when the executing court cannot go beyond the decree and can only decide the issues between the parties in accordance or consonance with the decree, I am of the view that the executing court is not having any power to annul or rescind the decree as has been done in this case. Thus by annuling the decree, the Court below had also acted without jurisdiction.
Coram
The Hon'ble Mr. Justice K.RAVICHANDRA BAABU
This Civil Revision Petition is filed against an order made in E.A.No.251 of 2009 in E.P.No. 2 of 2004 in O.S.No. 166 of 2002 on the file of the Additional Sub Court No.1, Cuddalore allowing the application filed by the respondents herein under Section 28 of the Specific Relief Act.
2. The petitioner herein as the plaintiff filed a suit in O.S.No. 166 of 2002 on the file of the Sub- Court Cuddalore for specific performance of an agreement of sale against the respondents herein as defendants. The said suit, after contest, came to be decreed on 29.6.2004, directing the defendants to execute the sale deed in favour of the petitioner after receiving the balance sale consideration of Rs.25,000/- and in default for execution of such sale deed by the Court. Three months time had been granted to the defendants for executing the sale deed in favour of the petitioner. Consequent upon such judgment and decree, the petitioner filed execution petition in E.P.No. 2 of 2005 as the defendants/respondents failed to execute the sale deed within the time stipulated by the trial court after receiving the balance sale consideration from the petitioner.
3. In the above E.P. the respondents herein filed an application under Section 28 of the Specific Relief Act praying for closure of the suit by holding that the suit agreement and decree stand rescinded by contending that a settlement was arrived between the parties and accordingly, the respondents have repaid the amount received from the petitioner with interest and the petitioner herein received the said money and executed a document dated 4.8.2008 thereby cancelling the suit agreement. Therefore, in view of the cancellation of the suit agreement by the petitioner/plaintiff, the decree passed by the court below should be cancelled as it got rescinded. It is also contended by the respondents that the petitioner had executed a separate discharge receipt.
4. The petitioner herein as the respondent in the said application filed counter affidavit and contested the same. It is her contention that after the decree passed by the trial Court, the respondents did not execute the sale deed and as such the petitioner deposited the balance sale consideration of Rs.25,000/- in court and filed the execution petition. It is also denied by the petitioner that the respondents herein repaid the amount received as advance with interest and that the petitioner herein had executed a document cancelling the suit agreement. The alleged cancellation deed dated 4.8.2008 is not a true, valid and admissible document in evidence. The petitioner further stated that she did not receive any amount nor issued any receipt nor executed any cancellation deed as alleged by the respondents. It is her categorical case that the so -called cancellation deed and receipt are forged documents, concocted by the respondents. It is further stated that the sale agreement is a registered one, which cannot be cancelled by an unregistered document.
5. The petitioner further stated that as against the decree passed by the trial Court, the respondents filed an appeal before the Principal District Court, Cuddalore with a petition to condone the delay and with a petition to permit them to sue as indigent persons. The said petition in I.A.No. 81 of 2005 seeking permission to file the appeal as indigent persons was contested by the petitioner and the same was dismissed on 6.1.2006 thereby directing the respondents to pay the court fee within two months. As the respondents did not pay the court fee, the appeal was dismissed consequently.
6. The court below after considering the rival pleadings of the parties and their submissions, allowed the application filed by the respondents and ordered that the suit agreement and the decree passed in the said suit stood cancelled and consequently the execution petition as closed. The said order is under challenge in this Civil Revision Petition.
7. Mrs. Chitra Sampath, the learned Senior Counsel appearing for the petitioner submitted that there was no out of court settlement arrived at between the parties on 4.8.2008 as alleged by the respondents. When the petitioner specifically denied and disputed the alleged agreement dated 4.8.2008 as well as the discharge receipt, the Court below erred in accepting the same by erroneously shifting the burden on the petitioner to disprove those documents. She would submit that the procedure adopted by the court below in closing the E.P. is against the procedure contemplated under Order 21 Rule 2A of CPC. It is her contention that without there being a certification of payment by the court in respect of the alleged payment made and received out of court as contemplated under Order 21 Rule 2A, the E.P cannot be closed, merely based on the disputed agreement dated 4.8.2008 and the discharge receipt said to have been executed by the petitioner which were marked as Exs.P1 and P2. It is her further submission that if at all any out of court settlement was arrived at, the respondents should have filed an application under Order 21 Rule 2 seeking for certification of such payment effected and received out side the court. When, admittedly, no such application was filed by the respondents, the Court below ought not to have allowed the application filed by them under Section 28 of the Specific Relief Act. She further contended that even such application under Order 21 Rule 2 ought to be filed within 30 days from the date of entering of any such compromise outside the court as contemplated under Article 125 of the Limitation Act. She further contended that all the witnesses had in fact contradicted the factum of out of court settlement. The learned Senior Counsel in support of her contention relied on the decision of the Hon'ble Supreme Court reported in 2006 (3) CTC 67( Padma Ben Banushali and another Vs. Yogendra Rathore and others).
8. Per contra, the learned counsel for the respondents submitted that the petitioner having entered into a compromise and executed the cancellation deed of the sale agreement along with a discharge receipt, cannot resist the application filed under Section 28 of the Specific Relief Act and the Court below has rightly allowed the application considering all the facts and circumstances of the case as well as by considering both oral and documentary evidence let in by the petitioners.
9. Heard the learned Senior Counsel appearing for the petitioner as well as the respondents.
10. From the above facts and circumstances as well as the submissions made by the respective counsels, the points for consideration in this Civil Revision Petition are as follows ;
(1) Whether the application filed under Section 28 of the Specific Relief Act solely on the reasons stated therein based on the disputed documents marked as Exs.P1 and P2, is maintainable ?
(2) If the application filed under Section 28 of the Specific Relief Act is not maintainable, whether the same can be construed as the one filed under Order 21 Rule 2 of CPC to grant the relief as prayed therein ?
11. Admittedly, in this case, the suit for specific performance based on an agreement of sale came to be decreed in favour of the petitioner on 29.6.2004. As per the decree, the respondents should receive the balance sale consideration of Rs.25,000/- and execute the sale deed within three months. As the respondents did not execute the sale deed by receiving the balance sale consideration within the time stipulated by the trial Court, an execution petition came to be filed by the petitioner on 22.12.2004. It is seen that the petitioner deposited the balance sale consideration of Rs.25,000/- in the court while filing the execution petition. It is further seen that the respondents made an attempt to challenge the decree by filing an appeal as indigent persons before the appellate court and got the same dismissed as they did not pay the court fee in pursuant to the dismissal of their application in I.A.No. 81 of 2005 seeking permission to file the appeal as indigent persons. It is seen that in the execution petition, the respondents entered appearance through their counsel on 1.3.2005 and they have not chosen to file any counter affidavit and the matter was dragged for nearly four years and thereafter the respondents filed the above said application under Section 28 of the Specific Relief Act by contending that there was an out of court settlement between the parties on 4.8.2008 resulting in execution of cancellation of the suit agreement by the petitioner. It is also contended by the them that the petitioner received the money from the respondents and executed a discharge receipt separately. The court below by accepting the above said contentions and also by shifting the burden on the petitioner to disprove those documents.
12. The case of the petitioner is that the respondents executed a registered sale agreement on 26.7.1999 in favour of the petitioner and received an advance amount of Rs.1 lakh by agreeing to execute the sale deed within two years by receiving the balance consideration. As they refused to execute the sale deed within the time stipulated in the agreement, the petitioner filed the said suit and got a decree in her favour on 29.6.2004. Even after the said decree, when the respondents failed to execute the sale deed within the time stipulated in the decree, the petitioner filed E.P. on 22.12.2004. It is seen that even though an attempt was made by the respondents to challenge the said decree before the appellate court, it appears that they failed as the appeal is said to have been dismissed for want of payment of court fee. The E.P filed on 22.2.2004 was dragged for nearly four years and all of a sudden the respondents came out with an application under Section 28 of the Specific Relief Act based on the cancellation deed and discharge receipt said to have been executed by the petitioner on 4.8.2008.
13. With these factual background, let me consider the scope of an application under Section 28 of the Specific Relief Act and see as to whether those facts discussed above would fit and satisfy the requirement of the said provision of law. For proper appreciation, Section 28 is reproduced hereunder: "28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed -
(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the Court
(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely (a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the Court."
14. From the perusal of Section 28, it could be seen that the same was intended to give an option to the vendor or lessor to apply before the Court to have the contract rescinded if the decree holder / purchaser/ lessee does not pay the purchase money or other sum which the Court has ordered him to pay within the period allowed by the decree or such further period as the Court may allow. Sub-Rule (3) further shows that the purchaser or lessee is also entitled to move for an order for such other further relief including the execution of proper conveyance or lease by the vendor or lessor, the delivery of possession or partition etc., of the property, if the decree holder/ purchaser / lessee pays the purchase money or other sum, which he is ordered to pay under the decree within the period referred to sub-section (1).
15. Thus, Section 28 can be invoked by the judgment debtor in a decree for specific performance only when the decree holder/ purchaser failed to pay the money within the time stipulated in the decree. Equally, the decree holder or lessee can also invoke section 28 seeking for further relief as contemplated under sub-rule (3) if he pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to therein. Therefore , on a combined reading of sub-sections (1) and (3), what is made clear in unambiguous terms is that the Court cannot go beyond the decree and rescind the same on any other ground other than the one contemplated under sub-section (1) of Section 28. To put it in simple terms, the vendor/judgment debtor is entitled to file an application under Section 28 only when the purchaser/decree holder failed to comply with the terms of the decree within the stipulated time. Thus, the decree cannot be rescinded on any other ground. In other words the grounds raised must be in consonance with the decree and not otherwise. Applying the said principle to the facts of this case, let me consider as to whether the respondents herein have satisfied the requirements under sub-section (1) of Section 28.
16. First of all, it is not their case that the petitioner herein did not pay the balance sale consideration within the time stipulated as contemplated under the decree. On the other hand, it is their case that there was an out of court settlement, whereby the parties have agreed to cancel the suit sale agreement and consequently to annul the decree. In my considered view, while considering the scope of Section 28 as discussed above, those two grounds are not available to the respondents herein to file an application under Section 28 of the Specific Relief Act for rescinding the contract as well as annulling the decree. Therefore, the very application filed under Section 28 of the Specific Relief Act is not maintainable as the reasons stated by the respondent in their petition before the Court below are not any way near the reasons contemplated under Section 28(1) of the Specific Relief Act. Moreover, the said application can be made only before the Court which passed the decree and not in an execution proceedings as has been done in this case. In my considered view, application under Section 28 is not maintainable before the execution court, especially when such court is only to execute the decree and not empowered to annul or rescind the same. It is well established that the executing court cannot go beyond the decree. When that being the settled position of law, I fail to understand as to how the application under Section 28 of the said Act was entertained by the execution court. Further, the application under section 28 has to be made only in the same suit in which the decree is passed. Thus, it is clear that the said application cannot be made before the court, which is executing such decree. Moreover, when the executing court cannot go beyond the decree and can only decide the issues between the parties in accordance or consonance with the decree, I am of the view that the executing court is not having any power to annul or rescind the decree as has been done in this case. Thus by annuling the decree, the Court below had also acted without jurisdiction. Therefore, the first question is answered in negative by holding that the application filed by the respondents under Section 28 of the Specific Relief Act is not maintainable before the executing Court.
17. Then, it leads me to consider the second question as to whether the said application can be construed as the one filed under Order 21 Rule 2 of C.P.C. to grant the relief to the respondents. No doubt the learned Senior Counsel for the petitioner relied on Order 21 Rule 2 of CPC and more particularly, Rule 2A to contend that the procedure adopted by the Court below in allowing the application is bad in law in the absence of endorsement or satisfaction of the decree by decree holder. For proper appreciation of such contention Order 21 Rule 2 of CPC is extracted hereunder:- "2. Payment out of Court to decree holder:- (1) Where any money payable under a decree of any kind is paid out of Court, or decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment -debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment of adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (2-A) No payment or adjustment shall be recorded at the instance of the judgment debtor unless
(a) the payment is made in the manner provided in rule 1; or
(b) the payment or adjustment is proved by documentary evidence; or
(c) the payment or adjustment is admitted by , or on behalf of, the decree holder in his reply to the notice given under sub-rule (2) of rule 1, or before the Court
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree. "
18. A bare perusal of the above said Rule would show that the same will come into operation only in a case where any money payable under a decree is paid out of Court in whole or in part to the satisfaction of the decree holder. Only in such circumstances, if the money is paid out of Court, payable under a decree, either the decree holder shall certify such payment or adjustment to the Court and the Court shall record the same accordingly. The judgement debtor also may inform the court of such payment or adjustment and apply to the Court for recording or certifying such payment or adjustment. Sub-Rule 2A contemplates that no payment or adjustment shall be recorded at the instance of the judgment debtor unless the payment was made in the manner provided in rule 1; or the payment or adjustment was proved by documentary evidence; or the payment or adjustment was admitted by the decree holder before the Court . Sub-Rule (3) contemplates that a payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.
19. Thus, a combined reading of all the sub-rules of Order 21 Rule 2 of C.P.C. it shows here again that the Court cannot go beyond the decree and what is contemplated is recording or certifying of the payment or adjustment of the money paid outside court, which is otherwise payable under the decree passed by the court. Thus, the grounds to be made under Order 21 Rule 2 must be either in terms of the decree or in consonance with decree and not against the decree. Therefore, even by construing the application filed by the respondents as the one under 21 Rule 2 CPC, still the same is not maintainable to grant the relief as it is not the case of the respondents that the money payable under the decree was paid out of court settlement to the decree holder. Consequently, the application filed by the respondents cannot even be construed as the one under Order 21 Rule 2 leave alone the fact that there was no certification by the decree holder or recording of adjustment by the Court. Therefore, even by applying the said provision under Order 21 Rule 2 CPC to the facts of the case, I consider that the respondents are not entitled to get any relief based on their contentions and averments made in support of their application filed before the Court below. Accordingly, the second question is also answered in negative against the respondents.
20. The Court below allowed the application without considering the maintainability of the same in view of the above stated position of law. The Court below has also erroneously shifted the burden on the petitioner herein to disprove the discharge receipt issued by her under Ex.P2. It is needless to say that one who relies on a document has to prove the same, especially when the other side disputes the execution of such document. The lower court's finding contra to such well settled principle is totally unsustainable . No doubt, the lower court had ventured to compare the signatures of the petitioner and came to a conclusion that Ex.A2 is not a forged document. I am unable to appreciate the course of action adopted by the Court below, especially, when the application is not maintainable either under Section 28 of the Specific Relief Act or under Order 21 Rule 2 and 2-A of the CPC.
21. The learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court reported in 2006 (3) CTC 67( Padma Ben Banushali and another Vs. Yogendra Rathore and others) in support of her contention that in the absence of certification by the Court below as contemplated under Rule 2A of Order 21, the Court below ought not to have allowed the application. In the said decision, the Hon'ble Supreme Court has considered the scope of Section 47 or Order 21 Rule 2 CPC. A reading of the said judgment also indicates that satisfaction of the decree, recording of the adjustment or certification of the same have to be made only in accordance with Order 21 Rule 2 CPC. It is further held therein that only if a decree, irrespective of its nature is adjusted or in whole or in part to the satisfaction of the decree holder , the decree holder has to certify such adjustment to that court who has to record the adjustment accordingly. Therefore, what is necessary is that there must be a decree and only that decree has to be adjusted in whole or in part to the satisfaction of the decree holder. As the case of the respondents herein is not either satisfaction of the decree or adjustment of the same in satisfaction of the decree holder, the present application filed by the petitioner is not maintainable either under Section 28 of the Specific Relief Act or under Order 21 Rule 2 CPC. Consequently, the Civil Revision Petition is allowed and the order of the Court below is set aside. The connected miscellaneous petition in M.P.No.1 of 2009 is closed. No costs.
Print Page
Madras High Court
Vijaya Ammal vs Ramalinga Naidu
DATED :- 1. 03.2013Coram
The Hon'ble Mr. Justice K.RAVICHANDRA BAABU
This Civil Revision Petition is filed against an order made in E.A.No.251 of 2009 in E.P.No. 2 of 2004 in O.S.No. 166 of 2002 on the file of the Additional Sub Court No.1, Cuddalore allowing the application filed by the respondents herein under Section 28 of the Specific Relief Act.
2. The petitioner herein as the plaintiff filed a suit in O.S.No. 166 of 2002 on the file of the Sub- Court Cuddalore for specific performance of an agreement of sale against the respondents herein as defendants. The said suit, after contest, came to be decreed on 29.6.2004, directing the defendants to execute the sale deed in favour of the petitioner after receiving the balance sale consideration of Rs.25,000/- and in default for execution of such sale deed by the Court. Three months time had been granted to the defendants for executing the sale deed in favour of the petitioner. Consequent upon such judgment and decree, the petitioner filed execution petition in E.P.No. 2 of 2005 as the defendants/respondents failed to execute the sale deed within the time stipulated by the trial court after receiving the balance sale consideration from the petitioner.
3. In the above E.P. the respondents herein filed an application under Section 28 of the Specific Relief Act praying for closure of the suit by holding that the suit agreement and decree stand rescinded by contending that a settlement was arrived between the parties and accordingly, the respondents have repaid the amount received from the petitioner with interest and the petitioner herein received the said money and executed a document dated 4.8.2008 thereby cancelling the suit agreement. Therefore, in view of the cancellation of the suit agreement by the petitioner/plaintiff, the decree passed by the court below should be cancelled as it got rescinded. It is also contended by the respondents that the petitioner had executed a separate discharge receipt.
4. The petitioner herein as the respondent in the said application filed counter affidavit and contested the same. It is her contention that after the decree passed by the trial Court, the respondents did not execute the sale deed and as such the petitioner deposited the balance sale consideration of Rs.25,000/- in court and filed the execution petition. It is also denied by the petitioner that the respondents herein repaid the amount received as advance with interest and that the petitioner herein had executed a document cancelling the suit agreement. The alleged cancellation deed dated 4.8.2008 is not a true, valid and admissible document in evidence. The petitioner further stated that she did not receive any amount nor issued any receipt nor executed any cancellation deed as alleged by the respondents. It is her categorical case that the so -called cancellation deed and receipt are forged documents, concocted by the respondents. It is further stated that the sale agreement is a registered one, which cannot be cancelled by an unregistered document.
5. The petitioner further stated that as against the decree passed by the trial Court, the respondents filed an appeal before the Principal District Court, Cuddalore with a petition to condone the delay and with a petition to permit them to sue as indigent persons. The said petition in I.A.No. 81 of 2005 seeking permission to file the appeal as indigent persons was contested by the petitioner and the same was dismissed on 6.1.2006 thereby directing the respondents to pay the court fee within two months. As the respondents did not pay the court fee, the appeal was dismissed consequently.
6. The court below after considering the rival pleadings of the parties and their submissions, allowed the application filed by the respondents and ordered that the suit agreement and the decree passed in the said suit stood cancelled and consequently the execution petition as closed. The said order is under challenge in this Civil Revision Petition.
7. Mrs. Chitra Sampath, the learned Senior Counsel appearing for the petitioner submitted that there was no out of court settlement arrived at between the parties on 4.8.2008 as alleged by the respondents. When the petitioner specifically denied and disputed the alleged agreement dated 4.8.2008 as well as the discharge receipt, the Court below erred in accepting the same by erroneously shifting the burden on the petitioner to disprove those documents. She would submit that the procedure adopted by the court below in closing the E.P. is against the procedure contemplated under Order 21 Rule 2A of CPC. It is her contention that without there being a certification of payment by the court in respect of the alleged payment made and received out of court as contemplated under Order 21 Rule 2A, the E.P cannot be closed, merely based on the disputed agreement dated 4.8.2008 and the discharge receipt said to have been executed by the petitioner which were marked as Exs.P1 and P2. It is her further submission that if at all any out of court settlement was arrived at, the respondents should have filed an application under Order 21 Rule 2 seeking for certification of such payment effected and received out side the court. When, admittedly, no such application was filed by the respondents, the Court below ought not to have allowed the application filed by them under Section 28 of the Specific Relief Act. She further contended that even such application under Order 21 Rule 2 ought to be filed within 30 days from the date of entering of any such compromise outside the court as contemplated under Article 125 of the Limitation Act. She further contended that all the witnesses had in fact contradicted the factum of out of court settlement. The learned Senior Counsel in support of her contention relied on the decision of the Hon'ble Supreme Court reported in 2006 (3) CTC 67( Padma Ben Banushali and another Vs. Yogendra Rathore and others).
8. Per contra, the learned counsel for the respondents submitted that the petitioner having entered into a compromise and executed the cancellation deed of the sale agreement along with a discharge receipt, cannot resist the application filed under Section 28 of the Specific Relief Act and the Court below has rightly allowed the application considering all the facts and circumstances of the case as well as by considering both oral and documentary evidence let in by the petitioners.
9. Heard the learned Senior Counsel appearing for the petitioner as well as the respondents.
10. From the above facts and circumstances as well as the submissions made by the respective counsels, the points for consideration in this Civil Revision Petition are as follows ;
(1) Whether the application filed under Section 28 of the Specific Relief Act solely on the reasons stated therein based on the disputed documents marked as Exs.P1 and P2, is maintainable ?
(2) If the application filed under Section 28 of the Specific Relief Act is not maintainable, whether the same can be construed as the one filed under Order 21 Rule 2 of CPC to grant the relief as prayed therein ?
11. Admittedly, in this case, the suit for specific performance based on an agreement of sale came to be decreed in favour of the petitioner on 29.6.2004. As per the decree, the respondents should receive the balance sale consideration of Rs.25,000/- and execute the sale deed within three months. As the respondents did not execute the sale deed by receiving the balance sale consideration within the time stipulated by the trial Court, an execution petition came to be filed by the petitioner on 22.12.2004. It is seen that the petitioner deposited the balance sale consideration of Rs.25,000/- in the court while filing the execution petition. It is further seen that the respondents made an attempt to challenge the decree by filing an appeal as indigent persons before the appellate court and got the same dismissed as they did not pay the court fee in pursuant to the dismissal of their application in I.A.No. 81 of 2005 seeking permission to file the appeal as indigent persons. It is seen that in the execution petition, the respondents entered appearance through their counsel on 1.3.2005 and they have not chosen to file any counter affidavit and the matter was dragged for nearly four years and thereafter the respondents filed the above said application under Section 28 of the Specific Relief Act by contending that there was an out of court settlement between the parties on 4.8.2008 resulting in execution of cancellation of the suit agreement by the petitioner. It is also contended by the them that the petitioner received the money from the respondents and executed a discharge receipt separately. The court below by accepting the above said contentions and also by shifting the burden on the petitioner to disprove those documents.
12. The case of the petitioner is that the respondents executed a registered sale agreement on 26.7.1999 in favour of the petitioner and received an advance amount of Rs.1 lakh by agreeing to execute the sale deed within two years by receiving the balance consideration. As they refused to execute the sale deed within the time stipulated in the agreement, the petitioner filed the said suit and got a decree in her favour on 29.6.2004. Even after the said decree, when the respondents failed to execute the sale deed within the time stipulated in the decree, the petitioner filed E.P. on 22.12.2004. It is seen that even though an attempt was made by the respondents to challenge the said decree before the appellate court, it appears that they failed as the appeal is said to have been dismissed for want of payment of court fee. The E.P filed on 22.2.2004 was dragged for nearly four years and all of a sudden the respondents came out with an application under Section 28 of the Specific Relief Act based on the cancellation deed and discharge receipt said to have been executed by the petitioner on 4.8.2008.
13. With these factual background, let me consider the scope of an application under Section 28 of the Specific Relief Act and see as to whether those facts discussed above would fit and satisfy the requirement of the said provision of law. For proper appreciation, Section 28 is reproduced hereunder: "28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed -
(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the Court
(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely (a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the Court."
14. From the perusal of Section 28, it could be seen that the same was intended to give an option to the vendor or lessor to apply before the Court to have the contract rescinded if the decree holder / purchaser/ lessee does not pay the purchase money or other sum which the Court has ordered him to pay within the period allowed by the decree or such further period as the Court may allow. Sub-Rule (3) further shows that the purchaser or lessee is also entitled to move for an order for such other further relief including the execution of proper conveyance or lease by the vendor or lessor, the delivery of possession or partition etc., of the property, if the decree holder/ purchaser / lessee pays the purchase money or other sum, which he is ordered to pay under the decree within the period referred to sub-section (1).
15. Thus, Section 28 can be invoked by the judgment debtor in a decree for specific performance only when the decree holder/ purchaser failed to pay the money within the time stipulated in the decree. Equally, the decree holder or lessee can also invoke section 28 seeking for further relief as contemplated under sub-rule (3) if he pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to therein. Therefore , on a combined reading of sub-sections (1) and (3), what is made clear in unambiguous terms is that the Court cannot go beyond the decree and rescind the same on any other ground other than the one contemplated under sub-section (1) of Section 28. To put it in simple terms, the vendor/judgment debtor is entitled to file an application under Section 28 only when the purchaser/decree holder failed to comply with the terms of the decree within the stipulated time. Thus, the decree cannot be rescinded on any other ground. In other words the grounds raised must be in consonance with the decree and not otherwise. Applying the said principle to the facts of this case, let me consider as to whether the respondents herein have satisfied the requirements under sub-section (1) of Section 28.
16. First of all, it is not their case that the petitioner herein did not pay the balance sale consideration within the time stipulated as contemplated under the decree. On the other hand, it is their case that there was an out of court settlement, whereby the parties have agreed to cancel the suit sale agreement and consequently to annul the decree. In my considered view, while considering the scope of Section 28 as discussed above, those two grounds are not available to the respondents herein to file an application under Section 28 of the Specific Relief Act for rescinding the contract as well as annulling the decree. Therefore, the very application filed under Section 28 of the Specific Relief Act is not maintainable as the reasons stated by the respondent in their petition before the Court below are not any way near the reasons contemplated under Section 28(1) of the Specific Relief Act. Moreover, the said application can be made only before the Court which passed the decree and not in an execution proceedings as has been done in this case. In my considered view, application under Section 28 is not maintainable before the execution court, especially when such court is only to execute the decree and not empowered to annul or rescind the same. It is well established that the executing court cannot go beyond the decree. When that being the settled position of law, I fail to understand as to how the application under Section 28 of the said Act was entertained by the execution court. Further, the application under section 28 has to be made only in the same suit in which the decree is passed. Thus, it is clear that the said application cannot be made before the court, which is executing such decree. Moreover, when the executing court cannot go beyond the decree and can only decide the issues between the parties in accordance or consonance with the decree, I am of the view that the executing court is not having any power to annul or rescind the decree as has been done in this case. Thus by annuling the decree, the Court below had also acted without jurisdiction. Therefore, the first question is answered in negative by holding that the application filed by the respondents under Section 28 of the Specific Relief Act is not maintainable before the executing Court.
17. Then, it leads me to consider the second question as to whether the said application can be construed as the one filed under Order 21 Rule 2 of C.P.C. to grant the relief to the respondents. No doubt the learned Senior Counsel for the petitioner relied on Order 21 Rule 2 of CPC and more particularly, Rule 2A to contend that the procedure adopted by the Court below in allowing the application is bad in law in the absence of endorsement or satisfaction of the decree by decree holder. For proper appreciation of such contention Order 21 Rule 2 of CPC is extracted hereunder:- "2. Payment out of Court to decree holder:- (1) Where any money payable under a decree of any kind is paid out of Court, or decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment -debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment of adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (2-A) No payment or adjustment shall be recorded at the instance of the judgment debtor unless
(a) the payment is made in the manner provided in rule 1; or
(b) the payment or adjustment is proved by documentary evidence; or
(c) the payment or adjustment is admitted by , or on behalf of, the decree holder in his reply to the notice given under sub-rule (2) of rule 1, or before the Court
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree. "
18. A bare perusal of the above said Rule would show that the same will come into operation only in a case where any money payable under a decree is paid out of Court in whole or in part to the satisfaction of the decree holder. Only in such circumstances, if the money is paid out of Court, payable under a decree, either the decree holder shall certify such payment or adjustment to the Court and the Court shall record the same accordingly. The judgement debtor also may inform the court of such payment or adjustment and apply to the Court for recording or certifying such payment or adjustment. Sub-Rule 2A contemplates that no payment or adjustment shall be recorded at the instance of the judgment debtor unless the payment was made in the manner provided in rule 1; or the payment or adjustment was proved by documentary evidence; or the payment or adjustment was admitted by the decree holder before the Court . Sub-Rule (3) contemplates that a payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.
19. Thus, a combined reading of all the sub-rules of Order 21 Rule 2 of C.P.C. it shows here again that the Court cannot go beyond the decree and what is contemplated is recording or certifying of the payment or adjustment of the money paid outside court, which is otherwise payable under the decree passed by the court. Thus, the grounds to be made under Order 21 Rule 2 must be either in terms of the decree or in consonance with decree and not against the decree. Therefore, even by construing the application filed by the respondents as the one under 21 Rule 2 CPC, still the same is not maintainable to grant the relief as it is not the case of the respondents that the money payable under the decree was paid out of court settlement to the decree holder. Consequently, the application filed by the respondents cannot even be construed as the one under Order 21 Rule 2 leave alone the fact that there was no certification by the decree holder or recording of adjustment by the Court. Therefore, even by applying the said provision under Order 21 Rule 2 CPC to the facts of the case, I consider that the respondents are not entitled to get any relief based on their contentions and averments made in support of their application filed before the Court below. Accordingly, the second question is also answered in negative against the respondents.
20. The Court below allowed the application without considering the maintainability of the same in view of the above stated position of law. The Court below has also erroneously shifted the burden on the petitioner herein to disprove the discharge receipt issued by her under Ex.P2. It is needless to say that one who relies on a document has to prove the same, especially when the other side disputes the execution of such document. The lower court's finding contra to such well settled principle is totally unsustainable . No doubt, the lower court had ventured to compare the signatures of the petitioner and came to a conclusion that Ex.A2 is not a forged document. I am unable to appreciate the course of action adopted by the Court below, especially, when the application is not maintainable either under Section 28 of the Specific Relief Act or under Order 21 Rule 2 and 2-A of the CPC.
21. The learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court reported in 2006 (3) CTC 67( Padma Ben Banushali and another Vs. Yogendra Rathore and others) in support of her contention that in the absence of certification by the Court below as contemplated under Rule 2A of Order 21, the Court below ought not to have allowed the application. In the said decision, the Hon'ble Supreme Court has considered the scope of Section 47 or Order 21 Rule 2 CPC. A reading of the said judgment also indicates that satisfaction of the decree, recording of the adjustment or certification of the same have to be made only in accordance with Order 21 Rule 2 CPC. It is further held therein that only if a decree, irrespective of its nature is adjusted or in whole or in part to the satisfaction of the decree holder , the decree holder has to certify such adjustment to that court who has to record the adjustment accordingly. Therefore, what is necessary is that there must be a decree and only that decree has to be adjusted in whole or in part to the satisfaction of the decree holder. As the case of the respondents herein is not either satisfaction of the decree or adjustment of the same in satisfaction of the decree holder, the present application filed by the petitioner is not maintainable either under Section 28 of the Specific Relief Act or under Order 21 Rule 2 CPC. Consequently, the Civil Revision Petition is allowed and the order of the Court below is set aside. The connected miscellaneous petition in M.P.No.1 of 2009 is closed. No costs.
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