//
you're reading...
legal issues

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 =2013 (March Part) judis.nic.in/judis_chennai/filename=41229

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

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,006,813 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,876 other followers

Follow advocatemmmohan on WordPress.com