P&H HC | Application for rescission of contract ‘mandatory’ to avail the relief, as S. 28, Specific Relief Act, 1963 doesn’t confer indefeasible right

Punajb and Haryana High Court

Punjab and Haryana High Court:  Sudhir Mittal, J. dismissed the revision petition filed by the petitioners (in this case the judgment-debtors) against the action of the Executing Court for refusing to recall the impugned order. According to the petitioners, the execution order was passed, ex parte hence, the fundamental principle of natural justice was violated.

Factual matrix of the case:

Initial suit for possession was filed by the petitioners, during the pendency of the suit the parties reached an amicable settlement and in lieu of such settlement, a compromise decree was passed. The terms of the decree offered the sale deed to be executed on or before 15.05.2016 along with the remaining consideration amount by the petitioners. Another term of the decree was, if the amount is not deposited on time, the earnest money will be forfeited and the agreement will also stand cancelled. According to the petitioners the amount was deposited on 08.07.2016. It was the case of the petitioners that the execution petition was preferred by the opposite party and the proceedings were dealt ex parte. However, the petitioner filed an application for setting aside the ex parte order but the same was dismissed .

Various issues and arguments governing the present case : 

(i) Issue: Whether the Executing Court has taken into consideration the likelihood of the petitioners not being found within a reasonable time.

Submissions : Petitioners contended that the execution proceedings were illegal and O. 5 R. 15 CPC was misconstrued by the Executing Court. It was alleged that the proper mode of service of summons was not followed by the Executing Court. Service of summons was made through an adult male member of the family and no efforts were made to find the petitioners. It was further contended that summons can only be served through an adult male member when there is no likelihood of the defendant being found at the residence within a reasonable time.

Held : Proper service report is not attached by the petitioners. It was held, “ Had they done so, it could have been seen whether there was likelihood of the J.D’s being found within a reasonable time.” Hence, it was difficult for the Court of examine whether the Executing Court failed to construe O. 5 R. 15 CPC.

(ii) Issue: Whether the petitioners showed ‘good cause’ for setting aside the ex parte order by the Executing Court.

Submissions : The contention of the petitioner was based on O. 9 R. 7 CPC. It was contended by the petitioners that they had ‘good cause’ as the application for setting aside the ex parte order was filed 7 months later on acquiring knowledge of the proceedings and the service was not affected in person and was improper mode altogether. The expression ‘good cause’ should be interpreted widely and not confined to the restricted interpretation placed on the expression ‘sufficient cause’ as mentioned in O. 9 R. 13 CPC.

Held: Application for setting aside the order after 7 months cannot qualify as a good cause. Hence, the Court while rejecting the contention held, “The interpretation placed upon Order 9 Rule 7 CPC is on the basis of a judgment of the Supreme Court in Sangram Singh vs. Election Tribunal, AIR 1955 SC 425 which holds that if good cause is not shown the party can be permitted to join proceedings prospectively. The clock cannot be turned back.”

(iii) Issue: No proper notice was given to the petitioner for the execution of sale deed by the Local Commissioner.

Submissions: It was argued by the petitioner that the execution and directions were issued even when the application for setting aside was pending.

Held: Court found that no legal principle has been cited by the petitioner in support of their argument. Hence, it was held, “A person who is not yet a party to the execution proceedings is not entitled to be given notice. Moreover, the order by which the Local Commissioner was directed to execute the sale deed is not under challenge and thus, the argument is rejected.”

(iv) Issue: The balance amount was paid by the petitioner after the time fixed in the decree, however, the agreement was rescinded and therefor the petitioners were entitled to certain relief.

Submissions: It was further argued by the petitioners that, a right stood accrued in favour of the petitioners on the date of filing of the application for setting aside the ex parte order and the same could not have been taken away.

Held: For the above mentioned argument the Court observed that S. 28 of Specific Relief Act, 1963, can only be brought into action when an application in this regard is filed made to the proper court. The Court while rejecting the argument of the petitioner held that, “It is in the nature of an enabling provision and does not confer an indefeasible right. To succeed, the JDs could have filed an application for the rescission of the contract before the Court which decreed the suit.”

[Dalbir Kaur v. Kashmir Singh, Civil Revision No. 388 of 2022, decided on 02-02-2022]


Appearances

For Petitioners:  Mr. Divanshu Jain


Aastha Sharma, Editorial Assistant has put this report together

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