Once HC In Second Appeal Renders Its Judgment, It Is Decree of Second Appellate Court Which Becomes Executable: SC
The Appeal before the Apex Court arose from a judgment of the Punjab & Haryana High Court rejecting four revision applications.
The Supreme Court clarified that once the High Court as an appellate court in the second appeal renders its judgment, it is a decree of the second appellate court which becomes executable.
The Appeal before the Apex Court arose from a judgment of the Punjab & Haryana High Court rejecting four revision applications filed by the original defendants and affirming the order passed by the executing court permitting the original plaintiff to deposit the balance sale consideration and rejecting the application filed by the defendants (judgment debtors) under Section 28 of the Specific Relief Act, 1963 for rescission of the contract.
The Division Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan said, “A suit for specific performance does not come to an end on passing of a decree and the court which has passed the decree for specific performance retains the control over the decree even after the decree has been passed.”
Senior Advocate Gurinder Singh Gill represented the Appellants while AOR Chritarth Palli represented the Respondents.
Factual Background
In the year 1994, four different suits for grant of specific performance of the agreement to sell were decreed by the Trial Court. Four identical conditional decrees for specific performance of the agreement to sell were passed while permitting the decree-holder to deposit the balance sale consideration. The defendant was directed to get the sale deed executed in favour of the plaintiffs. However, the First Appellate Court reversed the judgments and decrees passed by the trial Court, which led to the filing of four regular second appeals.
The High Court allowed the second appeal and the decrees passed by the trial Court were restored. The judgment debtors filed an application under Section 28 of the Specific Relief Act, 1963 for rescission of the contract on account of non-payment of the remaining sale consideration. The decree-holder deposited the decretal amount. The Revision Petitions had been filed for setting aside the orders of the Executing Court dismissing the application for rescission of the contract. The High Court’s rejection of the Revision Petitions led to the filing of the Appeal before the Apex Court.
Reasoning
The Bench took note of the fact that once the decision of the High Court was given in the second appeals filed by the plaintiffs (decree holders) there was a merger of the judgment of the trial court with the decision which was rendered by the High Court in the second appeals. Consequent to the passing of the decree of the second appellate court, the decree of the trial court merged with that of the same.
“...once the High Court allowed the second appeals in favour of the plaintiffs, there was evidently a merger of the judgment of the trial court with the decision of the High Court. Once the High Court as an appellate court in second appeal renders its judgment it is a decree of the second appellate court which becomes executable hence, the entitlement of the decree-holder to execute the decree of the second appellate court cannot be defeated”, it held.
Referring to section 28 of the Specific Relief Act, the Bench noted that this provision gives to the vendor or lessor the right to seek rescission in the same suit, when after the suit for specific performance is decreed the plaintiff fails to pay the purchase money within the period fixed. Referring to the judgment in Chanda (dead) through Lrs. v. Rattni and Anr. (2007), the Bench explained that the power under Section 28 of the Act is discretionary and the court cannot ordinarily annul the decree once passed by it. 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 the balance price be made by a certain date and on failure the suit to stand dismissed.
The Bench also noticed that there could be a decree which may say that if the plaintiff fails to deposit the balance sale consideration within the stipulated time period, the suit shall automatically stand dismissed. “If such is the nature of the decree then will the court concerned become “functus officio” and would have no jurisdiction to grant extension of time fixed by the decree for the purpose of deposit? This is one issue that the Supreme Court one day in an appropriate case may have to consider and decide”, the Bench highlighted.
“It is well settled position of law that when time for payment of money is extended, it does not mean a modification of the decree. The trial court has power to extend the time, and the expression “such further period as the court may allow” would mean the court which had passed the decree, or, where the application under Section 28 of the Act of 1963, is filed”, it further observed.
The Bench clarified that the High Court while allowing the second appeal filed by the original plaintiff had not issued any specific direction regarding the deposit of the balance sale consideration within a particular period. Thus, it was incorrect on the part of the appellant herein to say that since the trial court had directed that the balance sale consideration shall be deposited within 20 days, the same direction would be applicable even after the judgment of the High Court in the second appeal.
Thus, finding no error in the impugned judgment, the Bench dismissed the same.
Cause Title: Balbir Singh & Anr Etc. v. Baldev Singh (D) Through His Lrs & Ors. Etc (Neutral Citation: 2025 INSC 81)
Appearance:
Appellants: Senior Advocate Gurinder Singh Gill, Advocates P.P. Nayak, Kuldeep Singh Kuchaliya, Aashna Gill,Pratap Singh Gill, Eknoor Kaur,Mayank Dahiya, Bhupinder, AOR Ajay Pal
Respondents: AOR Chritarth Palli, AOR Chand Qureshi, Advocates Mohit Yadav, Aarti Pal
