Specific Performance suit Decreed - time granted to deposit balance of sale consideration with in one month from the date of decree failing which the suit shall be deemed to have been dismissed - amount not deposited - time extended - Civil vacation - no deposit on the reopening day - deposit on the next day of re-opening with out obtaining permission for extention of time - without giving notice to the Jdr about the deposit of balance sale consideration - extention petition filed later - Trial court dismissed the E.P. as well as extention petition as the suit was dismissed automatically by efflux of time - High court remanded the case for fresh consideration - Apex court held that the trial rightly dismissed the petition and Execution petition and as such the question of remanding a case for fresh consideration does not arise due efflux of time , the suit was dismissed automatically as there was no any fresh order of extention on a petition filed with in time -2015 S.C. msklawreports
the suit was decreed on 15.02.2007 and the
Plaintiff-Buyer was directed to deposit the balance sale consideration of
Rs.33,60,000/- by way of demand draft, in Court within one month from the
date of decree and the Defendant-Seller was directed to execute regular
sale deed in favour of the Plaintiff-Buyer, within three months from the
date of decree. It was made clear by the Trial Court in the decree that if
the balance amount of sale consideration is not deposited within one month
from the date of decree, the suit shall be deemed to have been dismissed.
The Plaintiff-Buyer did not deposit the said amount within one month
as stipulated in the decree but he filed an application for extension of
time for depositing the amount of balance sale consideration and vide
order dated 17.03.2007, the Additional Civil Judge (Sr. Division) extended
the time by two months. After the extension order, the last date for
deposit of the amount fell during the Summer Vacation of the Court. The
Plaintiff-Buyer did not deposit the said amount even on the re-opening day
after Summer Vacation, i.e. 28.05.2007. But allegedly, he filed a Memo for
issue of Receipt Order (R.O.) for depositing the said amount. However as
per the records, the R.O. was issued on 29.05.2007 and the amount was
deposited on the same day by cash.
Admittedly, the Defendant-Seller was not served with a copy of the
Memo and was not notified with regard to the alleged deposit.
The Defendant-Seller sold the property in question to Sri Rajesh on 20.06.2007 under a
registered sale deed. The Plaintiff-Buyer filed Execution Petition
No.88/2008 on 17.03.2008 in the Court of IInd Additional Civil Judge (Sr.
Division), which was dismissed on 20.10.2008.
(i) whether the amount
deposited on 29.05.2007 amounts to a deemed extension of time and a valid
(ii )whether one Rajesh who has purchased the property is a
(iii) whether the appellant is entitled to extension
of time when third party interest is created; and
(iv) whether the suit
stood dismissed on 28.05.2007 or earlier when the amount was not deposited
in terms of the decree.
The High Court directed the Trial Court to dispose
of the matter within two months from the date of receipt of the order.
Aggrieved by the order of remand passed by the Karnataka High Court, the
parties are before us.
Thus, in the present case, the Plaintiff-Buyer has clearly defaulted
on time of depositing as well as the mode of payment. The decree was self-
operative and the suit stood dismissed for non-compliance of the decree.
Further, the Plaintiff-Buyer also failed to make out a case for condonation
of delay. In view of these findings, we are of the opinion that the
questions formulated by the High Court in the order of remand are not
required to be answered by the Trial Court. Consequently, the appeal filed
by the Plaintiff-Buyer is dismissed and the appeal filed by the Defendant-
Seller is allowed. There shall be no order as to costs. - 2015 S.C. MSK LAW REPORTS