Case Note & Summary
The case involves a dispute over the execution of a decree for specific performance of an agreement to sell agricultural land. The appellant, Habban Shah (defendant), entered into an agreement to sell 12 kanals and 19 marlas of land to the respondent, Sheruddin (plaintiff), for Rs.5,00,000 per acre, receiving Rs.80,000 as advance. The sale deed was to be executed by 15.03.2006. Upon non-execution, the plaintiff filed a suit for specific performance, which was decreed on 31.10.2012 by the trial court. The decree directed the defendant to execute the sale deed within three months after receiving the balance sale consideration, failing which the plaintiff could get it executed through court. The defendant appealed, and an interim order restraining alienation was passed on 17.12.2012 but lapsed on 25.01.2013. The first appeal was dismissed on 11.11.2014, and the second appeal was dismissed on 12.01.2017. Meanwhile, the plaintiff filed a first execution application on 04.03.2013, which was dismissed for want of prosecution on 01.08.2014. A second execution was filed on 08.01.2015. The defendant objected, arguing that the decree required deposit of balance consideration within three months, which was not done, making the decree inexecutable. The Executing Court dismissed the objections on 07.09.2015, and the High Court upheld this in revision on 24.03.2025. The Supreme Court considered whether the decree was inexecutable due to non-deposit within the stipulated time. The Court noted that the decree was conditional but executable, and the defendant's remedy was to seek rescission under Section 28 of the Specific Relief Act, 1963, which he did not do. The Court also held that the execution was within limitation under Article 136 of the Limitation Act, and the second execution was maintainable despite dismissal of the first for default. The Court dismissed the appeal, affirming the orders of the Executing Court and the High Court, and directed the Executing Court to proceed with execution in accordance with law.
Headnote
A) Specific Relief Act, 1963 - Section 28 - Rescission of Contract - Decree of Specific Performance - Non-deposit of Balance Consideration - The judgment-debtor must file an application under Section 28 for rescission of the contract if the decree-holder fails to deposit the balance consideration within the stipulated time; mere non-deposit does not automatically render the decree inexecutable. The court held that the decree-holder's failure to deposit within three months does not extinguish the decree, and the judgment-debtor's remedy is to seek rescission under Section 28, which was not done in this case. (Paras 28-30) B) Code of Civil Procedure, 1908 - Order XX Rule 12A - Decree for Specific Performance - Time for Payment - It is mandatory for every decree of specific performance to specify the period within which the sale consideration should be paid. The decree in this case directed the defendant to execute the sale deed after receiving the balance consideration within three months, which by implication required the plaintiff to deposit the amount within that period. (Para 19) C) Limitation Act, 1963 - Article 136 - Execution of Decree - Limitation Period - An application for execution of a decree must be filed within twelve years from the date of the decree or when it becomes enforceable. The second execution filed on 08.01.2015 was within twelve years from the decree dated 31.10.2012 and thus not barred by limitation. (Para 22) D) Code of Civil Procedure, 1908 - Section 148 - Extension of Time - The court has the power to extend time for deposit of balance consideration even after the stipulated period has expired, especially when the judgment-debtor has not sought rescission under Section 28 of the Specific Relief Act. The delay in deposit was condoned by the Executing Court when it permitted the deposit on 09.10.2015. (Paras 28-30) E) Execution of Decree - Dismissal for Default - Second Execution - Mere dismissal of the first execution application for want of prosecution does not preclude the decree-holder from filing a fresh execution application within the period of limitation. (Para 23)
Issue of Consideration
Whether the decree of specific performance passed by the court of first instance on 31.10.2012 directing for the execution of sale deed on deposit of the balance sale consideration within three months would be inexecutable for the reason that the balance sale consideration was not deposited within the time stipulated.
Final Decision
The Supreme Court dismissed the appeal, holding that the decree of specific performance is executable despite the delay in deposit of balance consideration. The Court affirmed the orders of the Executing Court and the High Court, and directed the Executing Court to proceed with the execution in accordance with law.
Law Points
- Specific performance decree is conditional but executable
- non-deposit of balance consideration within stipulated time does not automatically render decree inexecutable
- Section 28 of Specific Relief Act provides remedy for rescission which must be invoked by judgment-debtor
- time for deposit can be extended by court even after expiry
- execution petition not barred by limitation if filed within 12 years under Article 136 of Limitation Act
- dismissal of first execution for default does not bar second execution
