Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 819 of 2018 Petitioner :- Harkali And 5 Others Respondent :- Harshwardhan Counsel for Petitioner :- Satya Prakash Srivastava,Ashish Srivastava Counsel for Respondent :- Ram Surat Patel
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 7.2.2015 by which the Executing Court has rejected the objections filed by the petitioners under Section 47 of the Code of Civil Procedure as well as order dated 9.11.2017 passed by the revisional court dismissing the revision.
Original Suit No.262 of 1992 was instituted by the respondents for specific performance of an agreement for sale dated 16.6.1986. It was decreed on 9.4.1996. The defendant (predecessor-in-interest of the present petitioners) was required to return Rs.19000/-, which he received as earnest money under the agreement with 10% interest within three months. In case of default, the plaintiff was held entitled to seek specific performance of the agreement to sale. The decree passed by the trial court was affirmed in appeal by judgement dated 17.11.2005. A second appeal was filed before this Court, which was dismissed on 3.2.2009. Since the defendants failed to return Rs.19000/-, therefore the decree was put to execution. It seems that in the meantime, the original defendant, namely the father of the petitioner died, the petitioners filed objections under Section 47 CPC claiming that they are marginal farmers and therefore, the decree is not executable. They also claimed that the plaintiff was a money lender and therefore, the decree passed is barred by provisions of Money Lending Act. They also pleaded that their father had made entire payment as directed under the decree of the trial court in December 2005. Therefore, the plaintiffs never became entitled for specific performance.
A perusal of the judgement of the trial court reveals that the father of the petitioners, i.e., the original defendant took the plea that he was a marginal farmer and also that he never executed any agreement for sale, but infact it was a security for a loan transaction. However, the aforesaid pleas were repelled and it was held that he had duly executed the agreement after receiving earnest money. While considering his case on the ground that he was a marginal farmer, the trial court exercised its discretion in permitting return of Rs.19000/- and passing decree for specific performance only in case there is default in payment of the said amount. The plea relating to the transaction being a loan transaction was also raised before the appellate court which was again repelled. In second appeal, the only plea taken was that the plaintiff/respondent was a minor on the date of execution of the agreement for sale dated 16.6.1986. However, said plea was repelled by this Court by holding that it was a unilateral document executed by the defendant Thakur Prasad, who was major on the date of its execution.
As regards the claim made by the petitioners that their father had paid the entire sum as directed by the trial court, in December 2005, a specific finding has been returned that there is no evidence to the said effect. Counsel for the petitioners very fairly admitted that no evidence has been filed in this regard before the courts below.
The plea relating to the petitioners being marginal farmers or that the plaintiff was a money lender, as noted above, were duly raised by the original defendant in the suit and in appeal and had been repelled. Consequently, it was not open to the executing court to go into the said pleas. The courts below have therefore, rightly rejected the objections filed by the petitioners against execution of the decree.
This court does not find any illegality in the impugned orders to warrant interference in exercise of supervisory power under Article 227 of the Constitution of India.
The petition is accordingly dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 28.3.2018 skv