Madras High Court
Rani vs Jayalakshmi on 30 August, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
C.R.P.No.3088 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.06.2023
Pronounced on : 30.08.2024
CORAM : JUSTICE N.SESHASAYEE
C.R.P. No.3088 of 2019
and CMP. No.20059 of 2019
1.Rani
2.Latha (minor)
3.Rekha (minor) ... Petitioners / Respondents 8 to 10 / Petitioners
Vs
1.Jayalakshmi
2.Rajkumar
3.Kaminiraj ... Respondents / Petitioners / Respondents
Prayer : Civil Revision Petition filed under Section 115 of CPC, praying to set
aside the order and decretal order dated 26.06.2018 made in E.A.No.580/2004
in E.P.No.210/1999 in O.S.No.202 of 1988 on the file of the Additional Sub
Judge, Puducherry.
For Petitioners : Mr.R.Thiagarajan
For Respondents : Mr.P.V.S.Giridhar
of M/s.PVS Giridhar & Associates
Assisted by Ms.Y.Kavitha & Mr.D.Prasanna
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C.R.P.No.3088 of 2019
ORDER
The legal representatives of the first defendant/judgment debtors in O.S. No.202
of 1988 on the file of the Additional Sub Court at Puducherry, are the petitioners
herein.
2. The facts that provide the back drop to this revision-petition may now be
bullet pointed:
● A certain property measuring 8,016 sq.ft. belonged to two persons. They
entered into a sale agreement dated 28.05.1987 with one T.Selvaraj for a
sale consideration of Rs.3.60 lakhs, out of which Rs.80,000/- was paid as
advance. It is an undisputed fact that the said Selvaraj was in peaceful
possession of the property under certain jural relationship with the owners
of the property even prior to the said sale agreement dated 28.05.1987.
● To enforce the sale agreement Selvaraj preferred O.S. No.202 of 1988
before the Additional Sub Court, Puducherry. A year later the first
defendant had passed away some time in 1989 and his legal
representatives were came to be impleaded.
● Vide its judgment and decree dated 08.10.1991, the trial court decreed the
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C.R.P.No.3088 of 2019suit but only to the extent of the half the share of the first defendant in the
suit property, and directed the plaintiff to deposit the balance
consideration of Rs.2.60 lakhs (where it should be Rs.2.80 lakhs) within
three months.
● Selvaraj, the plaintiff in the suit, preferred an appeal in A.S.No.972 of
1991 on the file of this court challenging that part of the decree of the
trial court dismissing specific enforcement of the contract for the other
half share. This appeal was later withdrawn by the plaintiff on
02.03.1998. Within 10 days of the withdrawal of A.S. No.972 of 1991,
the plaintiff deposited the balance sale consideration.
● Subsequently the decree holder laid E.P. No.210 of 1999 for obtaining a
sale deed for the half share of the first defendant. A sale deed too was
executed on 03.04.2019 by the execution court. Inasmuch as the decree
holder is already in possession of the property, there was no need for him
to approach the court for obtaining delivery of his half share.
3. The legal representatives of the first defendant who were defending the half
share of the first defendant and contested the suit, would now come out with an
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C.R.P.No.3088 of 2019
application in E.A. No.580 of 2004 under Section 47 CPC r/w Section 28 of the
Specific Relief Act, 1963. They allege in their affidavit:
a) Whereas the plaintiff / his legal representatives ought to deposit Rs.2.80
lakhs, they have chosen to deposit only Rs.2.60 lakhs. The differential
sum is not deposited till date.
b) Secondly, the trial court has directed the plaintiff to deposit the balance
sale consideration within three months from the date of its decree on
08.10.1991, the plaintiff had deposited it only on 12.03.1998, after the
withdrawal of A.S.972 of 1991 on 02.03.1998. Hence the plaintiff/his
legal representatives have lost all their right to execute the decree.
c) This allegations is followed with a set of reliefs which inter alia include:
i. To dismiss E.P.210 of 1999.
ii. To declare that the decree dated 08.10.1991 is inexecutable.
iii. Rescind the contract dated 28.05.1987 and to direct redeliver
possession of the northern half of the suit property with mesne profits
at Rs.3,900/-p.m..
4. In the counter filed by the legal representatives of decree-holder it is alleged:
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C.R.P.No.3088 of 2019
a) When the decree-holder filed A.S.972 of 1991 before this Court, he also
moved C.M.P.17184 of 1991 seeking leave of the Court to depoist Rs.1.0
lakh (since the suit was decreed only for one-half of the suit property) and
in the alternative to stay the operation of the decree. On 20.12.1991, this
Court had passed an order where it declined to grant leave to deposit
Rs.1.0 lakh, since the quantum of amount required to be deposited could
not be ascertained, but instead chose to stay the operation of the decree of
the trial court till the disposal of the appeal. This order was not
challenged by the petitioners, nor have they sought any modification.
b) A.S.972 of 1991 pending before this court was withdrawn on 02.03.1998.
Immediately thereafter the plaintiff filed a petition in I.A.No.705 of 1998
before this court for depositing the balance sale consideration of Rs.2.60
lakhs and accordingly, the said sum was deposited on 12.03.1998.
c) Since petitioners are parties to the proceedings before the High Court, they
are bound by the orders of the High Court.
d) In the meantime, the petitioners, without disclosing the decree passed in
the suit, and also the deposit of the balance sale consideration, moved the
District Court with G.O.P.47 of 1999 seeking leave of the court to sell that
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C.R.P.No.3088 of 2019
half of the property which was decreed.
5. After due enquiry, the execution court dismissed E.A.No.580 of 2004 and its
line of reasoning is that:
a) the decree passed by the trial court in O.S. No.202 of 1988 directed the
plaintiff to deposit balance sale consideration of only Rs.2.60 lakhs within
a stipulated time, and hence whatever that was deposited is in order, and
is in tune with the decree passed in the suit.
b) That the operation of the trial court decree was stayed by this Court till the
disposal of A.S.972 of 1991 and it binds the petitioners.
c) Even prior to the dismissal of the appeal (as withdrawn) on 03.10.1998,
the decree holder moved the trial court with I.A.705 of 1998 for deposit of
the balance sale consideration, and it was ordered on 09.09.1998.
This order has now been challenged.
6. Mr.R.Thiagarajan, the learned counsel for the revision petitioners made the
following submissions:
● The suit is laid for specific performance of an entire block of property for
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C.R.P.No.3088 of 2019a total sale consideration of Rs.3.60 Lakhs, out of which Rs.80,000/- had
been paid and the balance payable is Rs.2.80 lakhs. The trial Court,
however granted a decree for specific performance only as regards the half
share of 1st defendant but stipulated that Rs.2.60 lakhs must be deposited
within a period of three months from the date of passing of the decree.
Admittedly, the decree holder did not deposit whatever sale consideration
that was directed to be deposited by the trial Court. Instead, he laid
A.S.No.972 of 1991, challenging the decree dismissing the suit for
specific performance for the other half of the suit property. In this First
Appeal, the plaintiff took out C.M.P.No.17184 of 1991 seeking (a) leave
to deposit Rs.1.0 lakh towards balance sale consideration and; (b) to stay
the operation of the decree. On 20.12.1991, this Court dismissed the
plaintiff’s prayer seeking permission to deposit Rs.1.0 Lakh but stayed the
operation of the decree. On 02.03.1998, the plaintiff withdrew
A.S.No.972 of 1991, and this Court has passed the judgment dismissing
it as withdrawn on that day.
● Thereafter, the plaintiff has laid E.P.No.210 of 1999 in O.S.No.202 of
1988. In this E.P, the plaintiff has sought execution of a sale deed
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C.R.P.No.3088 of 2019pertaining to the northern half of the suit property when the decree of the
trial Court did not specify anything about the same. In other words, the
plaintiff seeking execution of a sale deed as regards specific half of the
entire property is contrary to what the decree states. In fitness of things,
the plaintiff ought to have sought partition of the half share of the property
under Section 22 of the Specific Relief Act,1963. Since the prayer in the
E.P goes tangential to the decree that was passed by the trial Court, to that
extent the decree is inexecutable.
● The trial Court has directed deposit of Rs.2.60 Lakhs when the plaintiff
knew that in terms of the agreement he is duty bound to deposit Rs.2.80
lakhs. Even it were a mistake of the court, still, the plaintiff should not
have taken advantage of the mistake of the court, but should have
approached the same for correcting the decree and should have deposited
the entire balance sale consideration of Rs.2.80 lakhs. And he has not
sought any time for extending the period for depositing the balance sale
consideration either. And, this is required to be appreciated in the
backdrop of the order of this Court dismissing his prayer to deposit Rs.1.0
lakh vide Order dated 20.12.1991 in C.M.P.No.17184 of 1991.
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C.R.P.No.3088 of 2019● A decree for specific performance is more in the nature of a preliminary
decree, and the contract will for enforcing which the decree was passed
still be subsisting if the decretal direction is not complied with within the
time stipulated. Inasmuch as the decree holders in the present suit has not
complied with the direction to deposit the sale consideration within three
months and since not the entire balance sale consideration is not
deposited, then the Judgement-debtors are entitled to apply for rescission
of contract under Sec.28 of the Specific Relief Act.
Reliance was placed on the ratio in Rajinder Kumar Vs Kuldeep Singh and
others [(2014) 15 SCC 529]; Chanda (Dead) through LRs Vs Rattni and
another [(2007) 14 SCC 26]; Smt.Vatsala Shankar Bansole Vs Shri Sambhaji
Nanasaheb Khandare and another [AIR 2003 Bom 57]; V.S.Palanichamy
Chettiar Firm Vs C.Alagappan and another [(1999) 4 SCC 702]; Hungerford
Investment Trust Limited Vs Haridas Mundhra and others [(1972) 3 SCC
684] and P.Baskaran Vs P.Soundararjan [2012 (2) MWN (Civil) 143].
7. Per contra, the learned counsel appearing for the decree holders/respondents
herein submitted the following:
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C.R.P.No.3088 of 2019● Even as E.A. No.580 of 2004 was pending, the first revision petitioner
had executed a power of attorney dated 28.05.2008 in favour of one
Somasundaram, on the strength of which, a sale deed dated 17.02.2012
was executed by the power holder in favour of one Mangalakshmi for a
sale consideration of Rs.80.00 lakhs. This fact was brought to the notice
of the execution court in E.A. No.580 of 2004. However, the enquiry
before the execution court was confined to the tenability of the contentions
raised in E.A. No.580 of 2004 and the execution court did not embark on
an enquiry into the facts relating to the execution of sale deed in favour of
Mangalakshmi.
● This apart, Somasundaram also entered into a sale agreement with
another party for another portion of the property involved herein and
hence she would approach the District Court, Puducherry with G.W.O.P.
No.47 of 1999 seeking the leave of the court for sale of the minors’ interest
in the property. On coming to know of this information, the decree
holders/respondents herein got themselves impleaded in the guardian OP
and no sooner that OP was not pressed.
● Shifting his focus to the merit of his contention, the decree holders obeyed
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C.R.P.No.3088 of 2019the decree, and if the decree was not correctly drafted then the interest of
the decree holders cannot suffer any injury for actus curiae neminem
gravabit. Indeed there is nothing on record to indicate that the plaintiff
had attempted to take an unfair advantage of the situation, and avoided
depositing Rs.20,000/- Reliance was placed on Bhupinder Singh Vs
Unitech Ltd., [2023 SCC OnLine SC 321]
● This Court in exercise of its power under Article 227 of the Constitution,
should not embark on fact finding as to whether the plaintiff has acted
unjustly, more so, when there is no evidence to support it.
Reliance was placed on the ratio in M/s.Puri Investments Vs M/s.Young
Friends and Co. & others [2022 SCC OnLine SC 283]; Umaji Keshao
Meshram and others Vs Radhikabai [1986 (Supp) SCC 401] and Bathumal
Raichand Oswal Vs Laxibat R. Tarta & another [(1975)1 SCC 858] to
expound the power of this Court under Article 227 of the Constitution of India.
8. The submissions of the learned counsel for the revision petitioners raises some
interesting aspects. At the end of the day, the plaintiff has complied with the
stipulation in the decree and has deposited Rs.2.60 lakhs. The decree on its face
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C.R.P.No.3088 of 2019
does not indicate that merely because the decree for specific performance was
granted only for half the share, the sale consideration has to be proportionately
reduced. Indeed, this was an aspect that gets reflected in the order in
C.M.P.No.17184 of 1991, and is also seen backed by Section 12(3) of the
Specific Relief Act, 1963. If in terms of Section 12(3) of the Specific Relief Act,
1963, the plaintiff is duty bound to pay the entire balance sale consideration of
Rs.2.80 lakhs, even if specific enforcement of the entire contract could not be
given. There is nothing to dispute this aspect of law. The trial Court, apparently
was in error when it directed the plaintiff to deposit not the entire balance sale
consideration of Rs.2.80 lakhs, but only Rs.2.60 lakhs. The point here is does
law require the plaintiff to inform the Court as a fair litigant and to seek
correction of an inadvertent mistake, or can he take advantage of the maxim
actus curiae neminem gravabit?
9. Impressive are the submissions of the counsel for the revision petitioner, but
are they adequate to help the revision petitioners / judgment debtors to reach
ashore safely? While there is merit in the submissions of the learned counsel
that a decree for specific performance will not replace the contract, if the decree
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requires something more to be done by the party who seeks specific enforcement
of the contract for fulfilling the contractual obligations created, then at the first
leg, the contract really survives. It is hence the Specific Relief Act provides a
pre-requisite or pre-condition in requiring a party who seeks specific
performance to demonstrate his readiness and willingness to perform his part of
the contract. The Court passes a decree for specific performance not because
the plaintiff has performed the entire contract at the point of passing the decree
but because he has demonstrated to the satisfaction of the Court that he has
always been ready and willing to perform the contract. But the term of the
contract has not yet been fully performed. It is hence when the Court directs the
plaintiff to deposit the balance sale consideration within a stipulated time, then it
is a direction given to the plaintiff to perform so much of contractual obligation
that he is required to perform, for performing which, he has demonstrated his
readiness and willingness. It is once this condition is performed, the contract
becomes eligible for specific enforcement. It is hence Courts have held that the
decree for specific performance is in the nature of preliminary decree.
10. The larger question is, has the petitioners/judgment debtors are able to
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establish that the decree holders have failed in performing the remainder part of
the contract, for performing which the Court has issued a direction to deposit the
balance sale consideration within three months in its decree.
11. Here this Court finds that the learned counsel’s ability to make an
approavable statement in law is not adequately backed by the facts of his case.
This is now explained :
(a) The trial Court in its decree has directed the plaintiff to deposit only
Rs.2.60 lakhs whereas it ought to have been Rs.2.80 lakhs. This is
plainly a mistake of the Court and the maxim actus curiae neminem
gravabit will apply? While this Court would have appreciated the
plaintiff if he had alerted the Court about the mistake in the decree as
to the sum required to be deposited by him, yet, it cannot attribute
unfairness to his conduct either. The Court with its decree, is not
conducting a test on fairness of a litigation.
(b) Secondly this decree of trial Court was challenged before the appellate
Court and the appellate Court indeed stayed the operation of the decree
of the trial Court, and this fact was not disputed, which implies the
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C.R.P.No.3088 of 2019decree of the trial Court was stayed till 02.03.1998, the date on which
this Court dismisses A.S.972 of 1991 as withdrawn, and within about
10 days, the decree holder has paid the entire money which he is
required to deposit in terms of the decree. Therefore, the three months
time stipulation got merged with the order of stay passed in
C.M.P.No.17184 of 1991.
12.1 The only point that stands to the credit of the petitioner did not argue,
operates in a slightly different sphere. The maxim actus curiae neminem
gravabit operates not only in aid of one party but it should operate in aid of both
the parties, which implies, if the trial Court with an inadvertent mistake has
made a direction only to deposit Rs.2.60 lakhs, then the defendants for also
whom the contract survives for performance beyond the decree of specific
performance is also entitled to have the money paid. The trial Court had an
opportunity to correct its suo motu mistake when the decree holder moved
I.A.No.705 of 1998 for seeking the leave of the Court to deposit the money. It
did not do it. The Execution Court atleast would have found this mistake.
While the Court shall not penalise the decree holder for not depositing
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Rs.20,000/- for want of a direction from it, it cannot also deny the judgment
debtor of the money due to him. Therefore, this Rs.20,000/- has to be now
deposited.
12.2 Secondly, the dispute in A.S.No.972 of 1991 is all about entitlement of
plaintiff to seek specific enforcement for other half of the suit property that
belonged to the second defendant. The plaintiff might have entertained a doubt
even bonafide, that when the total extent gets reduced, then the sale
consideration will get proportionately reduced, but when once this Court has
passed an order in CMP.No.17184 of 1991 and refused to enter into that issue,
then in fitness of things the plaintiff ought to have deposited the sale
consideration before the Court instantly. If only it had been done, atleast it
could have earned some interest in judgment debtors. After all, in this branch,
this Court exercises power in equity and this equity need to be done.
13. Turning to the multiple prayers the petitioners/judgment debtors have sought
in E.A.No.580 of 2004, this Court holds that the only prayer which the
petitioners may even attempt to seek, is one seeking rescission of contract under
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C.R.P.No.3088 of 2019
Section 28 and not rest of the prayers. And turning to the submissions of the
respondents, the prime concern is that this Court may not engage in a fact
finding, in exercising its jurisdiction under Article 227 of the Constitution. This
Court however has not opted to engage any fact finding but has only chosen to
streamline and balance the equities.
14. In fine, this Court dismisses this petition but subject to the following
directions:
(a) the decree holders shall deposit the balance sale consideration of
Rs.20,000/- along with interest at the rate of 9% from 08.01.1991
(date of the decree in O.S.No.202/1988) till the date of payment, into
the trial Court;
(b) that the decree holder shall pay interest at the rate of 6% on the entire
Rs.2.60 lakhs from 08.01.1991 (date of the decree in
O.S.No.202/1988), till the date on which the deposit was made before
the trial Court;
(c) the payment terms as directed in above clauses 14(a) and 14(b) shall
be made within a period of two months from this date.
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C.R.P.No.3088 of 2019
There shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.
30.08.2024
Index : Yes / No
Internet : Yes / No
Speaking order / Non-speaking order
ds
To:
1.The Additional Sub Judge
Puducherry.
2.The Section Officer
VR Section
High Court, Madras.
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C.R.P.No.3088 of 2019
N.SESHASAYEE.J.,
ds
Pre-delivery Order in
C.R.P.No.3088 of 2019
30.08.2024
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