G H SURINDER PAL SONI versus SOHAN LAL (D) THRU LRS . on 23 July 2019

[2019] 9 S.C.R. 1036

SUPREME COURT REPORTS

[2019] 9 S.C.R.

SURINDER PAL SONI

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SOHAN LAL (D) THRU LRS .

(Civil Appeal No. 5360 of 2019)

BJULY 23, 2019

[DR DHANANJAYA Y. CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Specific Relief Act, 1963: s.28 – Suit for specific performanceby appellant – Decree in respect of suit land except for land bearingC2 karnals – The appellant-decree holder and respondents-judgmentdebtors filed appeals challenging the order of trial court – Appellatecourt issued notice on the appeal and the application for stay filedby respondents while the appellant moved for execution of decree –Objections to the execution of decree filed by the respondents –DAppellate court dismissed both the appeals – Objections byrespondent were dismissed – Revision petition by respondents – HighCourt allowed the revision and directed refund of earnest money insubstitution of the decree of specific performance holding that therewas failure on part of appellant to deposit the balance of the saleconsideration within a period of two months from the date of decreeEand as a consequence the decree was rendered inexecutable byvirtue of provisions of s.28 of 1963 Act – On appeal, held: Thedoctrine of merger is founded on the rationale that there cannot bemore than one operative decree at a given point in time – The saiddoctrine applies irrespective of whether the Appellate Court hasFaffirmed, modified or reversed the decree of the trial court – Uponthe decision of Appellate Court, there is a merger of the judgmentof trial court with the decision which is rendered in appeal – In theinstant case, once the Appellate Court confirmed the judgment anddecree of the trial court, there was evidently a merger of the judgmentof the trial court with the decision of the Appellate Court – OnceGthe Appellate Court renders its judgment, it is the decree of theAppellate Court which becomes executable – Hence, the entitlementof the decree holder to execute the decree of the Appellate Courtcannot be defeated – Appellant-decreeholder had paid the balance H

of the sale consideration after the judgment of the Appellate Court– Appellant having acted bona fide, the equities must weigh in hisfavour – Executing court was justified in rejecting the speciousobjections of the respondents – In revision arising out of an executionproceeding, High Court modified the decree – Such a course wasnot open in law – High Court acted in excess of its revisionaljurisdiction in substituting decree for specific performance with anorder for refund of the sale consideration, beyond the earnest moneyof Rs. 2,00,000/- to the decree holder – In consequence, the orderpassed by Executing Court dismissing objections of respondents isrestored.

Allowing the appeal, the Court

HELD: 1. The doctrine of merger operates as a principleupon a judgment being rendered by the Appellate Court. In thepresent case, once the Appellate Court confirmed the judgmentand decree of the Trial Court, there was evidently a merger ofthe judgment of the Trial Court with the decision of the AppellateCourt. Once the Appellate Court renders its judgment, it is thedecree of the Appellate Court which becomes executable.[Para 17] [1047-B]

Conclusion

2.1 The High Court held that there was a failure on thepart of the appellant to deposit the balance of the saleconsideration within a period of two months from the date of thedecree and as a consequence the decree had been renderedinexecutable by virtue of the provisions of Section 28 of theSpecific Relief Act 1963. The High Court noted that of the totalsale consideration of Rs. 8,35,000/- under the terms of theagreement to sell, the appellant in 2004 had paid an amount ofRs. 5,85,000/- while the balance of Rs. 1,15,864/-, consequentupon the partial decree in the suit had been deposited on 19February 2015 after the dismissal of the first appeals on 17 January2015. According to the High Court, the time frame for the depositof the balance sale consideration was implicit in the decision ofthe Trial Court which had ordered the execution of the sale deedwithin two months from the date of the judgment upon deposit ofthe remaining sale consideration. The High Court held that the AB

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Ajudgment and decree had not been stayed during the pendencyof the first appeals and the mere filing of an appeal did not amountto a stay under Order 41 Rule 5 of the Code of Civil Procedure1908. Hence, it was not open to the appellant to seek theexecution of the decree on account of the lapse of the periodstipulated in the decree for its execution. [Paras 7, 8]B[1040-F-G; 1041-A-B; 1042-A-C]

2.2 The appellant had deposited an amount ofRs. 5,85,000/-. The partial decree of the Trial Court in the suitfor specific performance was placed in issue before the AppellateCourt. After the Appellate Court affirmed the decree, the decreeCof the Trial Court merged with that of the Appellate Court. Barelya month thereafter, on 19 February 2015 the appellant depositedthe balance of the sale consideration. The appellant acted bonafide.The equities in a matter arising out of a decree in a suit forspecific performance must weigh in his favour. The High CourtDimpermissibly substituted the decree for specific performancewith an order for refund of the sale consideration, beyond theearnest money of Rs. 2,00,000/- to the decree holder. The reasonswhich weighed with the High Court in doing so as well as itsultimate directions are unsustainable. [Para 21] [1050-D-F]

EChandi Prasad v. Jagdish Prasad (2004) 8 SCC724 : [2004] 4 Suppl. SCR 942;Sardar Mohar Singhv. Mangilal (1997) 9 SCC 217 : [1997] 1 SCR 297;Bhupinder Kumar v. Angrej Singh(2009) 8 SCC 766;Kunhayammed v. State of Kerala(2000) 6 SCC 359:[2000] 1 Suppl. SCR 538 ;Khoday Distilleries Ltd v.FSri Mahadeshwara Sahakara Sakkare Karkhane Ltd .(2019) 4 SCC 376 – relied on.

Shanthi v. T D VishwanathanCivil Appeal No. 10442of 2011, 2018 SCC OnLine SC 2196 ;S PalanichamyChettiar Firm v. C Alagappan (1999) 4 SCC 702 :G[1999] 1 SCR 349; Ramankutty Guptanv. Avara [1994] 2 SCC 642 : [1994] 1 SCR 542 –referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5360 of2019

From the Judgment and Order dated 01.06.2018 of the High Courtof Punjab and Haryana at Chandigarh in Civil Revision No. 3372 of2015

A. Tewari, Ms. Eliza Bar, Shree Pal Singh, Advs. for the Appellant.Gopal Jha, Adv. for the Respondent.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

1. A learned Single Judge of the High Court of Punjab and Haryanaallowed a Civil Revision instituted by the respondents and in the processdismissed the application of the appellant for the execution of a decreein a suit for specific performance. Accepting the objections of thejudgment debtor, the High Court directed a refund of earnest money insubstitution of the decree for specific performance.

2. In 2006, the appellant instituted a suit for specific performanceof an agreement to sell dated 8 December 2003. The appellant sought toenforce an agreement for the sale of land bearing 12 kanals and 9 marlas,representing a half share out of the land bearing Khewat Khatauni No.565/525, Khasra No. 94/18 (7-8), 19(8-0), 20/1 (6-3), 21/1 (1-7) and 94/21/3 (2-0) situated in village Billa, Tehsil and District Panchkula. On 20March 2012, the Civil Judge (Senior Division), Panchkula decreed thesuit except for land bearing 2 kanals mentioned in the sale deed in exhibit-D3. Insofar as is material, the decree provided thus :

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A“Resultantly, a decree for possession by way of specificperformance of the agreement to sell Ex. P1 dated 08.12.2003 ispassed in favour of the plaintiff in respect of remaining suit land,i.e., except the land of 2 kanals mentioned in sale deed Ex. D3, onmaking balance sale consideration amount to the L.Rs. of defendantNo.1, after deducting the consideration of aforesaid 2 kanals land.BThe L.Rs of the defendant No.1 are directed to execute the saledeed in respect of the remaining suit land within a period of twomonths from today in receipt of remaining balance saleconsideration after deduction of consideration of 2 kanals landand in case of failure of the L.Rs. of defendant No.1 to do so, theCplaintiff is entitled to get the sale deed executed and registeredquo the aforesaid land through the Court agency.”

3. Both the appellant and the respondent filed appeals against thejudgment of the Trial Court. On 23 April 2012, the Additional DistrictJudge, Panchkula issued notice in the appeal and on the application forDstay filed by the respondent.

4. On 15 June 2012, the appellant filed proceedings before theCivil Judge (Senior Division), Panchkula for seeking the execution ofthe decree passed in his favour, pending the first appeal.

5. On 19 May 2014, the respondent filed objections to the executionEpetition.

6. On 17 January 2015, the Additional District Judge upheld thejudgment and order of the Trial Court while dismissing both sets of appealsfiled respectively by the appellant and the respondent.

F7. On 23 February 2015, the executing court rejected the objectionsof the respondents to the execution of the decree and allowed theappellant’s execution petition. The respondent then filed a civil revisionbefore the High Court which resulted in the judgment of the learnedSingle Judge dated 1 June 2018 by which the order of the executingcourt was set aside. The High Court held that there was a failure on theGpart of the appellant to deposit the balance of the sale considerationwithin a period of two months from the date of the decree and as aconsequence the decree had been rendered inexecutable by virtue of the provisions of Section 28[1] of the Specific Relief Act 1963[2]. The HighCourt noted that of the total sale consideration of Rs. 8,35,000/- underthe terms of the agreement to sell, the appellant in 2004 had paid anamount of Rs. 5,85,000/- while the balance of Rs. 1,15,864/-, consequentupon the partial decree in the suit had been deposited on 19 February2015 after the dismissal of the first appeals on 17 January 2015. TheHigh Court opined thus:

“A perusal of the operative portion of the decree under executionshows that though the lower court has not specifically fixed anytime for deposit of the amount of balance sale consideration but ithas been provided in unambiguous terms that the sale deed is tobe executed within two months from the date of judgment upondeposit of balance sale consideration.”

128. Rescission in certain circumstances of contracts for the sale or lease ofimmovable 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 ofimmovable property has been made and the purchaser or lessee does not, within theperiod allowed by the decree or such further period as the court may allow, pay thepurchase money or other sum which the court has ordered him to pay, the vendor orlessor may apply in the same suit in which the decree is made, to have the contractrescinded and on such application the court may, by order, rescind the contract eitherso 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 thepurchaser 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 thevendor or lessor of all the rents and profits which have accrued in respect of theproperty from the date on which possession was so obtained by the purchaser orlessee until restoration of possession to the vendor or lessor, and, if the justice of thecase so requires, the refund of any sum paid by the vendee or the lessee as earnestmoney or deposit in connection with the contract.

(3) If the purchase or lessee pays the purchase money or other sum which he is orderedto 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 reliefas he may be entitled to, including in appropriate cases all or any of the followingreliefs, namely:— (a) the execution of a proper conveyance or lease by the vendor orlessor; (b) the delivery of possession, or partition and separate possession, of theproperty on the execution of such conveyance or lease.

(4) No separate suit in respect of any relief which may be claimed under this sectionshall 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 thecourt.

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A8. According to the High Court, the time frame for the deposit ofthe balance sale consideration was implicit in the decision of the TrialCourt which had ordered the execution of the sale deed within two monthsfrom the date of the judgment upon deposit of the remaining saleconsideration. The High Court held that the judgment and decree hadnot been stayed during the pendency of the first appeals and the mereBfiling of an appeal did not amount to a stay under Order 41 Rule 5 of theCode of Civil Procedure 1908[3]. Hence, it was not open to the appellantto seek the execution of the decree on account of the lapse of the periodstipulated in the decree for its execution. The High Court has reliedupon the provisions of Section 28 of the Specific Relief Act. It alsoCobserved that no application for the enlargement of time had been filedby the appellant. The correctness of this view falls for determination inthe present appeal.

9. Mr A Tewari, learned Counsel appearing on behalf of theappellant urged the following submissions :

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(i) The judgment and decree of the Trial Court dated 20 March2012 has merged with the decree of the First Appellate Court[4]dated 17 January 2015. The doctrine of merger applies whetherthe judgment of a subordinate court is reversed, modified orupheld by a court superior to it (Chandi Prasad v JagdishEPrasad[5]);

(ii) The decree for specific performance is in the nature of apreliminary decree and the court passing it does not becomefunctus officio (Sardar Mohar Singh v Mangilal[6]). Sincethe decree of the appellate court dated 17 January 2015 makesFno mention of the transaction becoming time barred, limitationwould commence from 17 January 2015;

(iii) The appellate court did not impose a time limit and, inconsequence, the decree dated 17 January 2015 becameenforceable from the date on which it was issued; G(iv) The power which is entrusted to the court under Section 28 ofthe Specific Relief Act is equitable in nature and it is open to 1 CPC2 “Appellate Court”3 (2004) 8 SCC 724H4 (1997) 9 SCC 217

SURINDER PAL SONI v. SOHAN LAL (D) THRU LRS.[DR DHANANJAYA Y CHANDRACHUD, J.]

the court to grant additional time for the performance of anycondition laid down in the decree (Sardar Mohar Singh)(supra). What is of prime importance is to gauge the readinessand the willingness of the decree holder. The judgment debtordid not seek the rescission of the contract under the provisionsof Section 28 of the Specific Relief Act;

(v) The balance of equities lies in favour of the appellant who haspaid Rs. 5,85,000/- out of the total sale consideration in 2004and only an amount of Rs. 1,15,864/- remained to be paidafter the judgment of the Trial Court; and

(vi) The provisions of Order 41 Rule 5 do not detract from thedoctrine of merger.

10. On the other hand, Mr Gopal Jha, learned Counsel appearingon behalf of the respondents submitted that :

(i) The doctrine of merger applies to a situation when thelimitation for the filing of an execution application is to becomputed;

(ii) The decree of the Trial Court was conditional since itcontained a direction for the execution of the sale deed of thesuit land except 2 kanals within a period of 2 months onreceipt of the balance sale consideration. The decree con-tained three conditions, each of which had to be fulfilled;

(iii) In the present case, the decree of the Trial Court was notmodified by the appellate court;

(iv) No application was filed by the appellant for the extension oftime to effect deposit nor was any amount deposited whilefiling the execution application. The High Court whiledismissing the appeal of the judgment debtor did not grant anextension of time to the decree holder for the deposit of thebalance;

(v) The decree holder has not shown reasonable grounds forextension of time and the filing of an appeal does notconstitute a valid ground particularly in the absence of a stayunder Order 41 Rule 5; and A

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[2019] 9 S.C.R.

A(vi) The respondent deposited the balance of the saleconsideration on 19 February 2015 without an application underSection 148 of the CPC for the extension of time.

For the above, it was submitted that the appellant having failed tocomply with the conditions specified in the decree dated 20 March 2012,Bthe High Court was justified in allowing the respondent’s civil revision and holding that the decree had been rendered inexecutable.

11. The rival submissions fall for our consideration.

12. By its judgment dated 20 March 2012, the Trial Court decreedthe suit for specific performance filed by the appellant save and exceptCfor the land admeasuring 2 kanals. The decree of the Trial Court envisagedperformance of the agreement to sell dated 8 December 2003 in respectof the land which formed the subject matter of the suit, except for 2kanals. The judgment debtor was directed to execute the sale deed inrespect of the remaining portion of the suit landD(i) within a period of 2 months;

(ii) on receipt of the balance sale consideration; and

(iii) upon deducting the consideration for 2 kanals of land.

The decision of the Trial Court was carried in appeal both by theEdecree holder and by the judgment debtor. The Appellate Court issuednotice on the appeal and the application for stay filed by the judgmentdebtor, while the decree holder moved for execution of the decree. Thejudgment debtor had filed objections to the execution of the decree. TheAppellate Court dismissed both sets of appeals by confirming the judgmentand decree of the Trial Court.F

13. Upon the decision of the Appellate Court, there was a mergerof the judgment of the Trial Court with the decision which was renderedin appeal. Consequent upon the passing of the decree of an AppellateCourt, the decree of the Trial Court merges with that of the AppellateCourt. The doctrine of merger is founded on the rationale that thereGcannot be more than one operative decree at a given point in time. Thedoctrine of merger applies irrespective of whether the Appellate Courthas affirmed, modified or reversed the decree of the Trial Court. InKunhayammed v State of Kerala[7],while explaining the doctrine ofmerger, this Court held thus:

H7 (2000) 6 SCC 359

“12. The logic underlying the doctrine of merger is that there cannotbe more than one decree or operative orders governing the samesubject-matter at a given point of time. When a decree or orderpassed by an inferior court, tribunal or authority was subjected toa remedy available under the law before a superior forum then,though the decree or order under challenge continues to beeffective and binding, nevertheless its finality is put in jeopardy.Once the superior court has disposed of the lis before it eitherway — whether the decree or order under appeal is set aside ormodified or simply confirmed, it is the decree or order of thesuperior court, tribunal or authority which is the final, binding andoperative decree or order wherein merges the decree or orderpassed by the court, tribunal or the authority below. However, thedoctrine is not of universal or unlimited application. The nature ofjurisdiction exercised by the superior forum and the content orsubject-matter of challenge laid or which could have been laidshall have to be kept in view.”

Further, while explaining the position that emerges on the grant ofspecial leave to appeal by this Court, it was observed:

“41. Once a special leave petition has been granted, the doors forthe exercise of appellate jurisdiction of this Court have been letopen. The order impugned before the Supreme Court becomesan order appealed against. Any order passed thereafter would bean appellate order and would attract the applicability of doctrineof merger. It would not make a difference whether the order isone of reversal or of modification or of dismissal affirming theorder appealed against. It would also not make any difference ifthe order is a speaking or non-speaking one…”

This position of law has been recently affirmed and reiterated bya three judge Bench decision of this Court in Khoday Distilleries Ltdv Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd[8].

14. The decision in Kunhayammed (supra) was followed by athree judge Bench decision of this Court in Chandi Prasad (supra),which held thus:

“23. The doctrine of merger is based on the principles of proprietyin the hierarchy of justice delivery system. The doctrine of merger8 (2019) 4 SCC 376

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Adoes not make a distinction between an order of reversal,modification or an order of confirmation passed by the appellateauthority. The said doctrine postulates that there cannot be morethan one operative decree governing the same subject matter at agiven point of time.

B24. It is trite that when an Appellate Court passes a decree, thedecree of the trial court merges with the decree of the Appellate Courtand even if and subject to any modification that may be made in theappellate decree, the decree of the Appellate Court supersedes the decreeof the trial court. In other words, merger of a decree takes placeirrespective of the fact as to whether the Appellate Court affirms,Cmodifies or reverses the decree passed by the trial court…”

15. More recently, the decision in Chandi Prasad (supra) wasfollowed by a two judge Bench of this Court in Shanthi v T DVishwanathan[9]rendered on 24 October 2018 in the following terms :

D“7. …When an appeal is prescribed under a statute and theappellate forum is invoked and entertained, for all intents andpurposes, the suit continues. When a higher forum entertains anappeal and passes an order on merit, the doctrine of merger wouldapply. The doctrine of merger is based on the principles of thepropriety in the hierarchy of the justice delivery system. TheEdoctrine of merger does not make a distinction between an orderof reversal, modification or an order of confirmation passed bythe appellate authority. The said doctrine postulates that therecannot be more than one operative decree governing the samesubject matter at a given point of time.”F16. Learned Counsel appearing on behalf of the respondentssubmitted that under Order 41 Rule 5 of the CPC, an appeal does notoperate as a stay of the proceedings under a decree or order appealedfrom except so far as the Appellate Court may order, nor shall executionof the decree be stayed only by reason of an appeal having been preferredGfrom the decree. The Appellate Court is however vested with the authorityto stay the execution of the decree for sufficient cause. The submissionis that since the decree was not stayed pending the disposal of the appeal,there was no impediment in its execution and, upon the failure of theappellant to deposit the balance in the execution proceedings, the decree H9 Civil Appeal No. 10442 of 2011,2018 SCC OnLine SC 2196

becomes inexecutable. Learned Counsel submitted that in such asituation, application of the doctrine of merger stands obviated.

17. We are unable to accept the submission. The doctrine ofmerger operates as a principle upon a judgment being rendered by theAppellate Court. In the present case, once the Appellate Court confirmedthe judgment and decree of the Trial Court, there was evidently a mergerof the judgment of the Trial Court with the decision of the AppellateCourt. Once the Appellate Court renders its judgment, it is the decree ofthe Appellate Court which becomes executable. Hence, the entitlementof the decree holder to execute the decree of the Appellate Court cannotbe defeated.

18. The issue can be looked at from another perspective in termsof the provisions of Section 28 of the Specific Relief Act. Section 28provides :

“28. Rescission in certain circumstances of contracts for the saleor lease of immovable property, the specific performance of whichhas been decreed.— (1) Where in any suit a decree for specificperformance of a contract for the sale or lease of immovableproperty has been made and the purchaser or lessee does not,within the period allowed by the decree or such further period asthe court may allow, pay the purchase money or other sum whichthe court has ordered him to pay, the vendor or lessor may applyin the same suit in which the decree is made, to have the contractrescinded and on such application the court may, by order, rescindthe contract either so far as regards the party in default oraltogether, as the justice of the case may require.”

19. Interpreting the provisions of Section 28 of the Specific ReliefAct, a three judge Bench of this Court held in Sardar Mohar Singh(supra):

“4. From the language of sub-section (1) of Section 28, it could beseen that the court does not lose its jurisdiction after the grant ofthe decree for specific performance nor it becomes functusofficio. The very fact that Section 28 itself gives power to grantorder of rescission of the decree would indicate that till the saledeed is executed in execution of the decree, the trial court retainsits power and jurisdiction to deal with the decree of specific A

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performance. It would also be clear that the court has power toenlarge the time in favour of the judgment-debtor to pay the amountor to perform the conditions mentioned in the decree for specificperformance, in spite of an application for rescission of the decreehaving been filed by the judgment-debtor and rejected. In otherwords, the court has the discretion to extend time for complianceof the conditional decree as mentioned in the decree for specificperformance…”

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In Bhupinder Kumar v Angrej Singh[10], this Court held thus:

“21. It is clear that Section 28 gives power to the court either toCextend the time for compliance with the decree or grant an orderof rescission of the agreement. These powers are available to thetrial court which passes the decree of specific performance. Inother words, when the court passes the decree for specificperformance, the contract between the parties is not extinguished.To put it clearly the decree for specific performance is in theDnature of a preliminary decree and the suit is deemed to be pendingeven after the decree.

22. Sub-section (1) of Section 28 makes it clear that the courtdoes not lose its jurisdiction after the grant of decree for specificperformance nor it becomes functus officio. On the other hand,Section 28 gives power to the court to grant an order of rescissionof the agreement and it has the power to extend the time to paythe amount or perform the conditions of decree for specificperformance despite the application for rescission of theagreement/decree. In deciding an application under Section 28(1)of the Act, the court has to see all the attending circumstancesincluding the conduct of the parties.”

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20. Learned Counsel appearing on behalf of the respondents placedreliance on the decision in V S Palanichamy Chettiar Firm v CAlagappan[11]. While adverting to the decision of this Court inGRamankutty Guptan v Avara[12], the two judge Bench held:

“15. …This Court observed that when the decree specifies thetime for performance of the conditions of the decree, on its failure 10 (2009) 8 SCC 766

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to deposit the money, Section 28(1) itself gives power to the courtto extend the time on such terms as the court may allow to paythe purchase money or other sum which the court has orderedhim to pay. The Court held, after noticing the conflict of decisionsby the Bombay High Court and the Andhra Pradesh High Court,that when the court which passed the decree and the executingcourt is the same, application under Section 28 can be filed in theexecuting court. However, where a decree is transferred forexecution to a transferee executing court then certainly thetransferee court is not the original court and the executing court isnot the “same court” within the meaning of Section 28 of the Act.But when an application has been made in the court in which theoriginal suit was filed and the execution is being proceeded with,then certainly an application under Section 28 is maintainable inthe same court…”

21. In the above case, the facts before this Court were that anagreement to sell had been executed nineteen years earlier on 16 February1980 and no explanation was forthcoming as to why the balance of thesale consideration was not deposited within the time granted by the court.No application for extension was made under Section 28 of the SpecificRelief Act. This Court observed that merely because a suit was filedwithin a period of three years prescribed by Article 54 of the LimitationAct 1963, that did not absolve the vendee-plaintiff from demonstratingthat he was ready and willing to perform the agreement and whether thenon-performance was on account of obstacles placed by the vendor orotherwise. In that context, this Court held:

“17. …The court has to see all the attendant circumstancesincluding if the vendee has conducted himself in a reasonablemanner under the contract of sale. That being the position of lawfor filing the suit for specific performance, can the court, as amatter of course, allow extension of time for making payment ofbalance amount of consideration in terms of a decree after 5 yearsof passing of the decree by the trial court and 3 years of itsconfirmation by the appellate court? It is not the case of therespondent decree-holders that on account of any fault on thepart of the vendor judgment-debtor, the amount could not be A

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Adeposited as per the decree. That being the position, if now timeis granted, that would be going beyond the period of limitationprescribed for filing of the suit for specific performance of theagreement though this provision may not be strictly applicable. Itis nevertheless an important circumstance to be considered bythe Court. That apart, no explanation whatsoever is coming fromBthe respondent decree-holders as to why they did not pay thebalance amount of consideration as per the decree except whatthe High Court itself thought fit to comment which is certainly notborne out from the record. Equity demands that discretion be notexercised in favour of the respondent decree-holders and noCextension of time be granted to them to comply with the decree.”

The facts noted in the above extract from the judgment indicate asituation which is factually distinct. In that case, the balance of the saleconsideration was sought to be deposited three years after theconfirmation of the decree by the Appellate Court. In the present case,Dthe facts clearly are to the contrary. The appellant had deposited anamount of Rs. 5,85,000/- The partial decree of the Trial Court in the suitfor specific performance was placed in issue before the Appellate Court.After the Appellate Court affirmed the decree on 17 January 2015, thedecree of the Trial Court merged with that of the Appellate Court. Barelya month thereafter, on 19 February 2015 the appellant deposited theEbalance of the sale consideration. The appellant acted bona fide.Theequities in a matter arising out of a decree in a suit for specificperformance must weigh in his favour. The executing court was justifiedin rejecting the specious objections of the respondents. The High Courtacted in excess of its revisional jurisdiction. The High Court impermissiblyFsubstituted the decree for specific performance with an order for refundof the sale consideration, beyond the earnest money of Rs. 2,00,000/- tothe decree holder. The reasons which weighed with the High Court indoing so as well as its ultimate directions are unsustainable. In a CivilRevision arising out of an execution proceeding, the High Court hasmodified the decree. Such a course was not open in law.G

22. We accordingly allow the appeal and set aside the impugnedjudgment and order dated 1 June 2018 of the learned Single Judge in CRNo. 3372 of 2015 (O&M). In consequence, the order passed by theExecuting Court on 23 February 2015, dismissing the objections of the H

SURINDER PAL SONI v. SOHAN LAL (D) THRU LRS .[DR DHANANJAYA Y CHANDRACHUD, J.]

respondent – judgment debtor in Execution Petition No. 2489 of 2013shall accordingly stand restored.

23. The appeal is allowed in the above terms. There shall be noorder as to costs.

Devika Gujral

Appeal allowed.

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