1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 371 of 2023 Judgment Reserved on 01.09.2025 Judgment delivered on 04.09.2025 1 - Pritam Lal Yadav S/o Late Nandlal Yadav, Aged About 68 Years R/o Village Dumardih, Post Patora Main Road, Patan, Pulia Road, Tahsil Patan, District : Durg, Chhattisgarh ... Petitioner(s) versus 1 - Qiyamuddin Ahmed S/o Mohammad Alim, Aged About 43 Years R/o Risali, Bhilai, Tahsil And, District : Durg, Chhattisgarh ... Respondent(s) ------------------------------------------------------------------------------------------------------- For Petitioner : Shri Jitendra Gupta, Advocate. For Respondent : Shri T.K. Jha, Advocate. ------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 1. The petitioner/ judgment-debtor has filed this petition assailing the order dated 6.3.2023, whereby the application moved by the petitioner under Section 47 of CPC was rejected, and he was directed to accept the consideration amount and execute the sale-deed after demarcation. NIRMALA RAO 2 2. The facts of the present case are that the respondent/ decree-holder filed a suit for specific performance of contract and perpetual injunction against the petitioner/ judgment-debtor. The civil suit was registered as Civil No. 32A of 2016. It was pleaded in the plaint that the petitioner entered into a sale agreement on 7.6.2013 to sell Survey No.999, admeasuring 57.5 decimals, for a total consideration of Rs.70,00,000/-, in the presence of two witnesses. An advance payment of Rs.15,00,000/- was made at the time of agreement. The petitioner had promised to execute registered sale-deed by 30.7.2014. However, as the petitioner failed to execute the sale- deed, the respondent filed a civil suit, which was decreed by the learned Trial Court vide judgment and decree dated 23.11.2019 and held as under: “1. वादी का वादी स्वाकार किकाया जाता है। 2. प्रकितावादी शेष किवाकाया प्रकिताफल 5500000/- रू० दी माहै का भीतार वादी से प्रप्ता कार वादीग्रस्ता भीमिमा खसेर नं"बर 999 रकाब 576 कि$सेमिमाल का पं"जाका& ता बनंमा वादी का पंक्ष मा( किनंष्पंदिदीता कारगा। 3. वादी द्वार शेष किवाकाया प्रकिताफल 5500000/- रूपंया दी माहै का भीतार प्रकितावादी का किनंकिवादीत्त कारनं मा( किवाफल रहैनं का. स्थि0किता मा( से"किवादी का किवाशिशेष्ट अनं4पंलनं का अनं4ताष सेमाप्ता मानं जायागा। 4. वादी द्वार प्रकिताफल का. शेष रशिशे दी माहै का भीतार किनंकिवादीत्त कारनं का पंश्चाता भी वादी द्वार पं"जाका& ता बनंमा नंहै6 किकाया जानं का. दीशे मा( वादी न्यायालया का माध्यामा से पं"जाका& ता बनंमा किनंष्पंदिदीता कार पंनं का अमि9कार हैगा। 5. उभीयापंक्षकार अपंनं अपंनं वादी व्यया वाहैनं कार(गा। 6. अमि9वाक्ता शे4ल्का प्रमाणि?ता हैनं पंर अथवा सेची अनं4सेर जा भी कामा है दीया हैगा।" 3 3. Learned trial Court directed the respondent/ decree-holder to make payment of balance consideration of Rs.55,00,000/- within a period of two months, and the petitioner was directed to execute the sale-deed. It was further observed that if the respondent fails to pay the balance consideration within the stipulated period, the decree for specific performance will lose its efficacy. 4. The respondent thereafter filed Execution Case No.22 of 2020, in which the petitioner filed objection under Section 47 of CPC, inter alia, on the ground that the balance consideration amount was not paid within the prescribed period of two months, and hence, the decree has lost its efficacy and it cannot be executed. 5. Learned counsel for the petitioner would submit that the respondent failed to pay the consideration amount within the stipulated time of two months. According to the condition mentioned in the decree itself, the decree is not executable. He would further submit that the balance amount was deposited with the learned Executing Court on 22.5.2023, whereas the judgment and decree was passed on 23.11.2019; hence, the payment was not made within the prescribed period. He would further submit that the learned Executing Court committed an error of law while rejecting the objection raised by the petitioner. 6. On the other hand, learned counsel for the respondent would contend that a xerox copy of Bank Draft No.000308 of Rs.55,00,000/- dated 14.1.2020 was sent to the petitioner through registered post, and he was requested to remain present before the learned First Additional District Judge on 17.1.2020 but he failed to appear and on said date, an application was also moved by the respondent. Thereafter, the 4 execution case was filed on 23.1.2020. He would submit that the respondent had made a bona fide attempt to comply with the decree, but due to absence of the petitioner, the decree could not be executed. He would also submit that the consideration amount was deposited by the respondent before the learned Executing Court on 22.3.2023. He would contend that the respondent has performed his part of the obligation, whereas the petitioner failed to perform his part, therefore, the application moved under Section 47 of CPC has been rejected by the learned Executing Court. He has placed reliance on the judgment of Hon’ble Supreme Court in the matter of Chanda vs. Rattni, reported in (2007) 14 SCC 26. 7. I have heard learned counsel for the parties and perused the documents present on record. 8. It appears that the petitioner failed to appear before the Court below on 17.1.2020 and bank draft could not be handed-over. The amount was deposited in the CCD account of the learned Executing Court on 22.3.2023. 9. In the matter of Chanda (supra), the Hon’ble Supreme Court has held that the power to rescind, alter and modify the contract under Section 28 of the 1963 Act, is discretionary, and Court has the authority to extend the time even though the decree may have directed that payment of balance price is to be made by a certain date. The court is required to consider as to whether the default was intentional or not. The relevant portion is reproduced herein below: “The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the Court cannot ordinarily annul the decree once passed by it. 5 Although the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. The Court does not cease to have the power to extend the time even though the trial Court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit to stand dismissed. The power exercisable under this Section is discretionary.” 10. In the application moved by the petitioner under Section 47 of CPC, the petitioner raised the ground that the respondent failed to comply with the conditions of the decree within the stipulated period of two months, and therefore, the decree is not executable. 11. A perusal of the documents and the findings recorded by the learned Executing Court would reveal that the petitioner himself was negligent. Therefore, the learned Executing Court rightly rejected his application. Furthermore, the Hon’ble Supreme Court in the matter of Chanda (supra), held that if there exists a bonafide reason for the delay or default, and no fault is attributable to the decree holder, the Court may exercise its discretion to extent the time for depositing the balance amount. In the present case, xerox copy of bank draft, which was sent through registered post was received by the petitioner but he failed to appear before the Court below on 17.1.2020 and the learned Court below has recorded findings in favour of the respondent in this regard, therefore, the respondent cannot be blamed for non-compliance of decree and the learned Court below rightly rejected the application moved by the petitioner. 12. Accordingly, the petition is devoid of merit and is hereby dismissed. Sd/- (Rakesh Mohan Pandey) Judge Nimmi