TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 2074
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....t 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 20 March 2012, the Civil Judge (Senior Division), Panchkula decreed the suit except for land bearing 2 kanals mentioned in the sale deed in exhibit-D3. Insofar as is material, the decree provided thus : "Resultantly, a decree for possession by way of specific performance of the agreement to sell Ex. P1 dated 08.12.2003 is passed 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, on making balance sale consideration amount to the L.Rs. of defendant No. 1, after deducting the consideration of aforesaid 2 kanals land. The L.Rs of the defendant No. 1 are directed to execute the sale deed in respect of the remaining suit land within a period of two months from today in receipt of remaining balance sale consideration after deduction of consideration of 2 kanals land and in case of failure of the L.Rs. of defendant No. 1 to do so, the plaintiff is entitled to get the sale deed executed and registered quo the....
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....cution of the sale deed within two months from the date of the judgment upon deposit of the remaining sale consideration. The High Court held that the judgment and decree had not been stayed during the pendency of the first appeals and the mere filing of an appeal did not amount to a stay under Order 41 Rule 5 of the Code of Civil Procedure 1908 [CPC] . Hence, it was not open to the appellant to seek the execution of the decree on account of the lapse of the period stipulated in the decree for its execution. The High Court has relied upon the provisions of Section 28 of the Specific Relief Act. It also observed that no application for the enlargement of time had been filed by the appellant. The correctness of this view falls for determination in the present appeal. 9 Mr. A Tewari, learned Counsel appearing on behalf of the appellant urged the following submissions : (i) The judgment and decree of the Trial Court dated 20 March 2012 has merged with the decree of the First Appellate Court ["Appellate Court"] dated 17 January 2015. The doctrine of merger applies whether the judgment of a subordinate court is reversed, modified or upheld by a court superior to it (Chandi Pr....
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.... (v) The decree holder has not shown reasonable grounds for extension of time and the filing of an appeal does not constitute a valid ground particularly in the absence of a stay under Order 41 Rule 5; and (vi) The respondent deposited the balance of the sale consideration on 19 February 2015 without an application under Section 148 of the CPC for the extension of time. For the above, it was submitted that the appellant having failed to comply with the conditions specified in the decree dated 20 March 2012, the 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 decreed the suit for specific performance filed by the appellant save and except for the land admeasuring 2 kanals. The decree of the Trial Court envisaged performance of the agreement to sell dated 8 December 2003 in respect of the land which formed the subject matter of the suit, except for 2 kanals. The judgment debtor was directed to execute the sale deed in respect of the remaining portion of the suit land ....
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....explaining the position that emerges on the grant of special leave to appeal by this Court, it was observed: "41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one..." This position of law has been recently affirmed and reiterated by a three judge Bench decision of this Court in Khoday Distilleries Ltd v Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. [(2019) 4 SCC 376]. 14 The decision in Kunhayammed (supra) was followed by a three judge Bench decision of this Court in Chandi Prasad (supra), which held thus: "23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a dist....
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....cutable. Learned Counsel submitted that in such a situation, application of the doctrine of merger stands obviated. 17 We are unable to accept the submission. The doctrine of merger operates as a principle upon a judgment being rendered by the Appellate Court. In the present case, once the Appellate Court confirmed the judgment and decree of the Trial Court, there was evidently a merger of the judgment of the Trial Court with the decision of the Appellate Court. Once the Appellate Court renders its judgment, it is the decree of the Appellate Court which becomes executable. Hence, the entitlement of the decree holder to execute the decree of the Appellate Court cannot be defeated. 18 The issue can be looked at from another perspective in terms of the provisions of Section 28 of the Specific Relief Act. Section 28 provides : "28. Rescission in certain circumstances of contracts for the sale or lease of immovable 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 of immovable property has been made and the purchaser or lessee does not, within the period allowed by the....
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.... of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties." 20 Learned Counsel appearing on behalf of the respondents placed reliance on the decision in V S Palanichamy Chettiar Firm v C Alagappan [(1999) 4 SCC 702]. While adverting to the decision of this Court in Ramankutty Guptan v Avara [(1994) 2 SCC 642], the two judge Bench held: "15. ...This Court observed that when the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, Section 28(1) itself gives power to the court to extend the time on such terms as the court may allow to pay the purchase money or other sum which the court has ordered him to pay. The Court held, after noticing the conflict of decisions by the Bombay High Court and the Andhra Pradesh High Court, that when the court which passed the decree and the executing court is the same, application....
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....decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the respondent decree-holders and no extension of time be granted to them to comply with the decree." The facts noted in the above extract from the judgment indicate a situation which is factually distinct. In that case, the balance of the sale consideration was sought to be deposited three years after the confirmation of the decree by the Appellate Court. In the present case, the facts clearly are to the contrary. The appellant had deposited an amount of Rs. 5,85,000/- The partial decree of the Trial Court in the suit for specific performance was placed in issue before the Appellate Court. After the Appellate Court affirmed the decree on 17 January 2015, the decree of the Trial Court merged with that of the Appellate Court. Barely a month thereafter, on 19 February 2015 the appellant deposited the balance of the sale consideration. The appellant acted bona fide. The equities in a matter arising out of a decree in a suit for specific performance must weigh in his favour. The executing court was justified in....