JUDGMENT Umeshwar Pandey, J.
1. Heard learned Counsel for the petitioner.
2. In this petition the order dated 21.2.2004, passed by the executing court and the other dated 30.1.2006, passed by the revisional court are under challenge.
3. A suit for specific performance of contract of the plaintiffs respondents was decreed by the trial court on 15.4.1978 and direction was given for the plaintiffs to deposit the remainder sale consideration of Rs. 7,000 within a period of two months. In pursuance to that, the respondents made deposit of all the aforesaid sum on 3.5.1978. Meanwhile the first appeal before the District Judge was filed, which was ultimately dismissed on 16.1.1979, wherein also a direction was given for depositing the remainder sale consideration of Rs. 7,000 within a period of one week. Since the amount aforesaid was already under deposit, the respondents did not make further deposit and meanwhile the second appeal before this Court was filed. This second appeal also met the same fate of dismissal vide order dated 23.9.2003. However, during pendency of the second appeal a permission was given by this Court vide Annexure-19 to the respondents plaintiffs to withdraw that deposit of sale consideration of a sum of Rs. 7,000 and thereafter in the event of dismissal of appeal it was directed that the plaintiffs respondents would obtain permission for making fresh deposit from this Court. However, without obtaining any fresh permission from this Court subsequent deposit of sale consideration of Rs. 7,000 was done by the respondents plaintiffs on 28.2.2004 in pursuance to the impugned order of the executing court.
4. Learned Counsel for the petitioner contends that this permission of deposit given by the executing court was wholly illegal in the face of the order of this Court passed on 1.8.1979, permitting the withdrawal of a sum of Rs. 7,000 by the respondents and further giving directions to him to obtain order of this Court for fresh deposit in case the appeal was dismissed.
5. From the entire background of this case and the submissions as made by the learned Counsel for the petitioner, the things are quite crystal. The second appeal was dismissed on merit by this Court and in a suit for specific performance of contract while a decree is being passed in favour of the plaintiffs the duty cast upon the Court itself is to give such direction as to make compliance for payment or deposit of the sale consideration either in the Court or to the vendor, which this Court appears to have ignored while dismissing the appeal itself vide Annexure-11. In fact, both trial court and the first appellate court have decreed the suit and the second appeal was dismissed. The decree was confirmed and remained Intact. The interim order, if any, passed by this Court in second appeal, has lost any relevance in the face of final judgment rendered in the case. Therefore, if this Court had not passed the direction towards the deposit of remainder sale consideration, it is not the respondents who are to blame. The plaintiff respondent moved the executing court which in pursuance of the existing decree has given permission vide impugned order dated 21.2.2004 to make the deposit of the remainder sale consideration in pursuance to which the deposit has been made.
6. I do not find any illegality in the said order of the executing court dated 21.2.2004. Likewise there is absolutely no infirmity in the revisional order passed in the revision preferred against the order of the executing court.
7. The very relevant question was raised by the learned Counsel for the petitioner that since the deposit was not made in pursuance of an order of this Court given during pendency of the second appeal, the contract of sale was liable for being rescinded under Section 28 of Specific Relief Act. It is true that the aforesaid provision provides for that and as admitted by the learned Counsel for the petitioner himself that an application to that effect was given before the executing court, which is also the trial court but the same was dismissed vide order dated 3.9.2005. It is also admitted by the learned Counsel that though the petitioner was aggrieved against that order but he has not sought any remedy either by way of revision or an appeal against the dismissal of his application under Section 28 of Specific Relief Act. Obviously, if no action against said order has been resorted to by the aggrieved party, the order becomes final and it cannot be challenged. The reference of that was also not of much relevance in so far as this petition is concerned.
8. In the aforesaid view of the matter, I do not find any substance in this writ petition and it is hereby dismissed.