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Ram Krishna and anr. Vs. Mukand Shanker and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 306 of 1953
Judge
Reported inAIR1963All49
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 32; Transfer of Property Act, 1882 - Sections 55
AppellantRam Krishna and anr.
RespondentMukand Shanker and anr.
Appellant AdvocateAmar Nath Kaul and ;Gopi Nath Kunzru, Advs.
Respondent AdvocateRajeswari Prasad, Adv.
DispositionAppeal dismissed
Excerpt:
.....board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - according to him this amounted to a special contract to the contrary between the parties or reading the operative portion as a whole it did not lay down any condition for the payment of the price and the decree-holders were entitled to execute the decree when the judgment-debtors failed to execute the sale-deed within thirty days. 6000/- and on such a tender having been made the judgment-debtor had failed to execute the sale-deed within that period of two months. if the decree did not provide any period during which the decree-holders were required to make payment of the sale consideration or if the decree did not lay down that the sale consideration was to be paid prior to the..........hereby decreed with costs on payment of rs. 7143/12/- by the plaintiffs to the defendants. let a sale-deed be duly executed by defendant no. 1 as karta of the family on his behalf and also on behalf of defendant no. 2 in favour of the plaintiffs within 30 days from today failing which the plaintiffs may get the sale-deed executed through court.'3. the aforesaid decree was passed on 5th october, 1950. on 4th november, 1950, that is within thirty days, the decree-holder sent a telegram to the judgment-debtor to execute the sale-deed. the decree-holder further said that he was prepared to pay the sale-price. a reply to this telegram was sent by the judgment-debtor on 6th november, 1950, stating that he was filing an appeal against the order. on 4th december, 1952, an application was made.....
Judgment:

Mithan Lal, J.

1. This appeal filed by the judgment-debtor against the order of dismissal of their objection arises out of the following circumstances.

2. The decree-holder obtained a decree for specific performance of a contract of sale. The operative portion of the judgment is as follows:-

'The suit for specific performance of the contract dated 23rd November, 1944, is hereby decreed with costs on payment of Rs. 7143/12/- by the plaintiffs to the defendants. Let a sale-deed be duly executed by defendant No. 1 as karta of the family on his behalf and also on behalf of defendant No. 2 in favour of the plaintiffs within 30 days from today failing which the plaintiffs may get the sale-deed executed through Court.'

3. The aforesaid decree was passed on 5th October, 1950. On 4th November, 1950, that is within thirty days, the decree-holder sent a telegram to the judgment-debtor to execute the sale-deed. The decree-holder further said that he was prepared to pay the sale-price. A reply to this telegram was sent by the judgment-debtor on 6th November, 1950, stating that he was filing an appeal against the order. On 4th December, 1952, an application was made by the judgment-debtor under Section 35 of the Specific Relief Act for rescission of the contract which was registered as Misc. Case No. 51 of 1952. A few days after that is on 13th December, 1952 the decree-holders filed an application for execution of the decree for specific performance requesting the Court to get a sale-deed executed in terms of the decree. This was registered as Execution No. 43 of 1952. The judgment-debtors filed an objection to this execution under Section 47 Civil Procedure Code. Both these objections of the judgment-debtors that is the application under Section 35 of the Specific Relief Act and the objection filed by them under Section 47 were heard together and were dismissed by the learned Civil Judge on 16th May, 1953. He ordered the decree-holders to deposit the sale consideration within a week and also ordered the judgment-debtors to execute the sale-deed. It is this order which has been questioned in this appeal by the judgment-debtors. It has not been disputed before me on behalf of the parties, as stated by the learned counsel for the decree-holders, that after the aforesaid order of the Court a sale-deed of the property has already been executed in favour of the decree-holders by the Court, and the decree-holders have also obtained possession over the property.

4. Sri G. N. Kunzru, learned counsel for the appellants, has put forward two argumentsin this case. The first is that the decree as passed was not executable unless the decree-holders deposited the decretal amount. The decree-holders could only request the Court for its assistance in executing the decree or getting a sale-deed executed after they deposited the sale consideration. His second contention is that according to the ordinary rules governing the rights and liabilities of buyer and seller the consideration of the property purchased is to be paid simultaneously with the execution of the deed unless the parties have entered into an agreement to the contrary which was not the case here. In support of his argument the learned counsel has relied upon the Division Bench case of Lahori Ram Sahgal v. Prabhu Dayal, AIR 1953 All 120. It is also his submission that even though no time has been mentioned for payment of the sale consideration in the order of the Court and a duty has been imposed upon the judgment-debtors to execute the sale-deed within thirty days from the date of the order, yet the two clauses of the order have to be read together and in order to place a consistent interpretation it must be found in favour of the judgment-debtors that the decree-holders were also required to pay the sale consideration of Rs. 7,143/12/- within a period of thirty days and the judgment-debtors were required to execute the sale-deed only after such a payment was made. In a nut shell his argument is that the payment of the price should be treated to be a condition precedent.

5. The learned counsel for the decree-holders has on the other hand contended that the terms-of the decree have to be read as they are and the executing court while executing the decree could not go behind that decree. The decree did not require the decree-holders to make payment of the sale price within a period of thirty days so as to make the payment of consideration a condition precedent to the execution of the sale-deed. According to him this amounted to a special contract to the contrary between the parties or reading the operative portion as a whole it did not lay down any condition for the payment of the price and the decree-holders were entitled to execute the decree when the judgment-debtors failed to execute the sale-deed within thirty days. His submission is that the decree-holders were not bound to tender or deposit the money as a condition precedent to the execution of the sale-deed and the court below was right in ordering the judgment-debtors to execute the sale-deed when they made a default in executing the sale-deed itself.

6. I have heard learned counsel for the parties at some length and I do not at all agree with the learned counsel for the appellants that it is a case in which the decree is not an executable decree or that it is a case of reciprocal promises or a case in which the payment of sale consideration should be deemed to be a condition precedent for the execution of the sale-deed. The terms of the decree have been given in the earlier portion of the judgment. The suit was decreed for specific performance of the contract on payment of Rs. 7143/12/- by the plaintiffs to the defendants.The decree does not provide when the payment is to be made or whether the payment was to be made prior to the execution of the sale-deed. No time for payment of the sale-consideration is also given in the decree while a period of thirty days was fixed for the judgment-debtors to execute the sale deed in favour of the decree-holders. The case of Lahori Ram, AIR 1953 All 120 (supra), is based on different terms of the decree. iD that case the Civil Judge passed a decree in the following terms: -

'The plaintiffs suit for specific performance is decreed and the defendant is ordered to execute a deed in favour of the plaintiff reconveying the properties in question to the plaintiff after receiving Rs. 6000/- from the latter within two months of this date.'

Two month's time was thus fixed for execution of the sale-deed and it was further provided by the decree that the sale-deed will be executed after the judgment-debtor received the sale-consideration. It was after considering the terms of the decree that the Division Bench remarked in para 5 that:-

'From a perusal of the operative portion of the decree which has been quoted by us in the opening part of our judgment, it is quite clear that the right of the decree-holder to invoke the assistance of the Court in executing the decree would have come into existence only if within a period of two months of the decree the decree-holder had moved in the matter by tendering to the judgment-debtor the sum of Rs. 6000/- and on such a tender having been made the judgment-debtor had failed to execute the sale-deed within that period of two months.'

The Division Bench further repelled the contention of the decree-holder's counsel that the limit of two months prescribed for the execution of the decree was intended solely for the judgment-debtor and the decree-holder could under Article 182 of the Limitation Act pay the sale consideration within three years.

7. The present case is quite distinct from the case of Lahori Ram, AIR 1953 All 120 (supra), inasmuch as the Court did not direct the decree-holders to make a deposit within a specified period nor did it direct that the sale deed would be executed after the judgment-debtors received the sale consideration. This authority, therefore in no way helps the judgment-debtor nor does it show that even in the case of the present type where no time for payment of the sale consideration has been fixed it should still be treated to be a case of reciprocal promises or a case where the sale consideration was to be paid prior to the execution of the sale deed.

8. Sale of immoveable property has been defined as

'Transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. ''

Under the terms of the decree it would be a case where the sale consideration would be deemed to have been promised to be paid. The learned counsel relying upon Clause (d) of Sub-section (1) of Section 55 of the Transfer of Property Act contended that the seller is bound to execute a proper conveyance of the property on payment or tender of the amount agreed in respect of the price but this clause in no way helps the judgment-debtor because the whole Section is subject to a contract to the contrary. In the present case it shall have to be deemed that the Court while fixing no time for payment of the sale consideration or fixing 30 days time for execution of sale deed by the judgment-debtor, ordered that the said two acts need not be simultaneous. It must be deemed to be a case where the sale considera-tion was promised or where there was a contract to the contrary. Clause (d) above would only show that the ordinary rule of law is that the payment of the sale consideration is a simultaneous act with the execution of the sate-deed, but that is subject to a special contract to the contrary which may be entered into by the parties or which may be brought into existence by the order of the Court in a case of specific performance. It cannot, therefore, be accepted that in all cases whether there is a contract to the contrary or not or whether there is any order of the Court to the contrary or not the price must be tendered or paid as a condition precedent by the party in whose favour the decree for specific performance of the contract has been passed. This view will find support from the observations made in the Calcutta case of Nanik Lal Karmakar v. Shankar Lal Shah, AIR 1962 Cal 103. In that case, the Division Bench after going through the terms of the agreement between the parties held that

'the contract read as a whole did not lay down any order for performance of the reciprocal promises'

and so the plaintiff could seek reconveyance of the property without tender or deposit of the money as condition precedent to the enforcement of the contract. The facts of that case are slightly different but the Division Bench after discussing the various authorities came to the conclusion that the relation between the parties has to be judged from the contract between the parties read as a whole. Thus, having regard to the terms of the decree it cannot be treated to be a case where the decree-holders were required to pay the sale consideration as a condition precedent or simultaneously with the execution of the sale-deed.

9. The learned counsel laid great stress that the decree for specific performance without an order of simultaneous payment of the sale consideration would be a decree which could not be executed. This contention of the learned counsel has no force because even under the definition of the sale given in Section 54 or the rights and liabilities of the seller and buyer given in Section 55 the parties can always agree to the execution of the sale deed prior to the payment of the sale price and in this case the relations of the buyer and seller are to be governed by a decree for specific performance. If the decree did not provide any period during which the decree-holders were required to make payment of the sale consideration or if the decree did not lay down that the sale consideration was to be paid prior to the execution of the sale deed it could not be calledto be a decree bad in law or a non-executable decree.

10. The learned counsel also raised an argument relating to the interpretation of statutes and contended on the basis of the decision in the case of N. T. Valuswami Thevar v. Raja Nainar, AIR 1959 SC 422 that if the construction of a Statute gives rise to two inferences, one which results in an anomaly and the other against it, it is the duty of the court to adopt the latter and not the former. The learned counsel also referred to one or two English cases in support of this proposition but this proposition is totally besides the point in the present case because there is no question of any inconsistent interpretation of the terms of the decree nor the interpretation which has been placed on the decree leads to any anomalous result or makes the decree inconsistent. The Court had power in law to make an order for specific performance of the decree on payment of the sale price imposing an obligation on the judgment-debtors to execute a sale deed within a prescribed period while imposing no condition on the decree-holders to pay the sale price simultaneously with the execution of the sale deed or as a condition precedent to the execution of the deed.

11. There is also the further fact that on 4th November, 1950, before the expiry of 30 days the decree-holders sent a telegram to the judgment-debtor requiring him to execute the sale deed and at the same time offering to pay the sale price fixed by the Court. The judgment-debtor did not accept the offer and put of the matter by sending a wrong reply on 6-11-1950. This would mean that the decree-holders, even if there had been a condition of payment of sale consideration prior to the execution of sale deed, were prepared to perform their part of the contract as payment of sale price within 30 days. They in fact should be deemed to have tendered it by means of the telegram. There was thus no default on the part of the decree-holders, while the judgment-debtor was the defaulter, (even if the arguments of the learned counsel for the appellants were to be accepted).

12. For all these reasons the arguments raised by the learned counsel for the appellants must be overruled. This appeal has no force and must fail.

13. The appeal is hereby dismissed withcosts.


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