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Civil Petition No. 565 of 1977, decided on 25th July, 1979.

(On appeal from the order dated 29-10-1978 of the Lahore High Court at Lahore in C. M. No. 4589/ C of 1978 in R. F. A. No. 5 of 1975).

---S. 21-Specific performance of contract-Interest, accrual of Petitioner entering into agreement to sell his house for 9 lacs of rupees in favour of respondent, receiving 3 lacs of rupees in advance and binding himself to execute and register sale deed within 45 days on receipt of balance of 6 lacs and hand over possession of house to respondent Petitioner failing to exercise his part of agreement and respondent obliged to file suit for enforcement of agreement-Suit decreed on deposit of Rs. 6 lacs and respondent depositing amount before date fixed-Execution of decree however stayed by High Court at petitioner's instance-Eventually in course of execution proceedings necessary sale deed got executed and registered in favour of respon dent-Petitioner for first time becoming entitled to receive Rs. 6 lacs lying in deposit with a Bank-Petitioner being not entitled in law to withdraw such amount without having executed sale deed in respon dent's favour, petitioners, held, not entitled to interest accruing on sum of Rs: 6 lacs for period preceding execution of sale deed.

Saeedur Rehman Farrukh, Advocate Supreme Cburt and Sh. Salahuddin, Advocate-on-Record for Petitioner.

Nemo for Respondent.

This is a petition for special Leave from an order dated 29th of October 1978, passed by a learn Division Bench of the Lahore High Court at Lahore dismissing the Evil Miscellaneous No. 4589/C of 1978 in R: F. A. No. 5 of 1978 filed by the present petitioner against the respondent herein.

In brief the relevant facts are that on the 29th of June 1974, the petitioner entered into an agreement to sell the Bungalow No. 27-R-1, Egerton Road, Lahore for a sum of Rs. nine lakhs in favour of the respondent. He received rupees three lakhs in advance at the time of the execution of the agreement and it was stipulated between the parties that the petitioner shall execute and register the sale deed within 45 days of the agreement on receipt of the balance sale price of rupees six lakhs and deliver the possession thereof to the respondent. On failure of the petitioner to complete the sale, the respondent brought a suit for possession of the property by specific perfor mance of the agreement. On the 22nd of November, 1975, the trial Court passed the decree for specific performance of the agreement of sale in favour of the respondent on payment of rupees six lakhs to be deposited in Court before the 21st of December 1974. In pursuance to the decree the respondent deposited the sum of rupees six lakhs due from him in Court.

But the petitioner went up in Regular First Appeal No. 5 of 1975 against the decree to the High Court. On the application of the present petitioner on the 10th of April 1975, a Division Bench of the High Court passed an order staying the execution of the decree under appeal and directed

"(a) that the amount of rupees six lakhs deposited by the decree-holder in executing Court shall be deposited in a Bank which along with its interest will be regulated in accordance with the result of the appeal ;

(b) that as regards the future rent of the property from the date of the decree, the petitioner agreed to give security to the satisfaction of the executing Court that in case his appeal failed and the purchaser was found entitled to the mesne profits, then the same will be paid by the vendor."

In pursuance to this arrangement the amount of Rs. 6 lakhs was deposited on the 21st of April 1975 in the United Bank Limited to abide by the result in the appeal.

Eventually on the 18th of February 1977, the appeal of the petitioner was dismissed with certain modifications in the decree made by the trial Court. Thereafter in about July 1977 the respondent applied to the executing Court for the execution of the decree in his favour. It was only on the 20th of July 1978, that the sale deed for the property in favour of the respondent was executed through Court in pursuance to the execution proceedings.

Thereafter the petitioner applied to the executing Court for the payment of Rs. 6 lakhs along with the interest accrued thereon to him. On this the executing Court directed the petitioner to seek necessary clarification of the order dated 10^th of April 1975, passed by the High Court in the first appeal.

In these circumstances the petitioner then filed the Civil Miscellaneous No. 4589/C of 1978 in R. F. A. No. 5 of 1975 under section 151 of the Code of Civil Procedure praying for a clarification of the aforesaid order dated 10th of April 1975. This was disposed of by a Division Bench of, the High Court by the impugned order passed on the 29th of October, 1978. In the opinion of the High Court the petitioner had no mind to get the sale deed registered in time as he had himself filed a petition for special leave to appeal against the appellate decree before the Supreme Court which was eventually dismissed on the 23rd of June 1978 and that therefore, there was no default on the part of the respondent to complete the sale. During this period, the petitioner has been in possession of the property as an owner receiving the rent in respect thereof. The sale deed in the case was registered only on the 26th of July 1978. As such, according to the High Court the petitioner was entitled to the future interest accruing on the sum of Rs. 6 lakhs in deposit from the 26th July 1978 and riot before it.

Hence this petition for special leave from the impugned order. We have heard the learned counsel for the petitioner. Admittedly according to the basic agreement of sale executed between the parties, a sum of Rs. 3 lakhs was paid in advance by the respondent to the petitioner against it execution on the 29th of June, 1974 and according to one of the terms of this agreement, the remaining sale price of Rs. 6 lakhs had to be paid by the respondent to the petitioner at the time of the registration of the sail deed before the Sub-Registrar and the delivery of the possession of the 'Bungalow to him within 45 days. Evidently the petitioner had failed to exercise his part of the agreement and the respondent had to file the suit for enforcement of the agreement through Court. On the 22nd of November 1974, the trial Court decreed the suit of the plaintiff-respondent for specific performance of the agreement on deposit of Rs. 6 lakhs by him before the 21st of December 1974. The respondent deposited the sum of Rs. 6 lakhs due from him in Court. But then the execution of the decree was stayed in appeal by the High Court at the instance of the petitioner. It was eventually on tire 26th of July 1978 in course of the execution proceedings that the necessary sale deed was got executed and registered in favour of the respondent and the petitioner became entitled for the first time to receive the sum of Rs. 6 lakhs lying in deposit as the balance of the sale price. Before this execution of the sale deed through Court the petitioner was not entitled in law to withdraw the money from the Court without having executed the sale deed in favour of the respondent. In this view of the matter therefore, we have no doubt in our mind that the petitioner was not entitled to the interest that had accrued on the sum of Rs. 6 lakhs for the period before the 26th of July 1978. In the circumstances the order passed by the High Court is unexceptionable. We, therefore, see no force in this petition which is dismissed.

Petition dismissed.

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