Sec.28 of Specific Relief Act – Or.21, rule 2 and 2 A of CPC – not maintainable in E.P. proceeding – Specific performance suit was decreed – E.P. filed by depositing balance sale considered as the Jdr failed to execute a Reg. Sale deed – E.A. under Sec.28 of Specific Relief Act claiming settlement out of court and sale amount was refunded and DHr passed receipt and cancellation deed for suit Agreement of sale , to close the E.P. – Trial court allowed the claim – Their Lordships of High court held that sec.28 of specific relief act is to be filed before the court in original side jurisdiction which passed the decree but not in executing court – it should be filed when the Dhr failed to comply the decree but not for out of court settlement and as such the E.A. is not maintainable – Or.21, rule 2 applies only when the Dhr certify the receipt satisfaction of the decree with 30 days – on that count also not maintainable – and as such set aside the Lower court order and allowed the revision =
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. =
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28 of the Specific Relief Act praying for closure of the suit by holding that the suit agreement and decree stand rescinded by contending that a settlement was arrived between the parties and accordingly, the respondents have repaid the amount received from the petitioner with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of the suit agreement by the petitioner/plaintiff, the decree passed by the court below should be cancelled as it got rescinded.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.
(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 ?
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.
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.-
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.
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.
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. =
2013 (March Part) judis.nic.in/judis_chennai/filename=41229