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Friday, March 27, 2015

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
notified purchaser; 
 (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

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