Order XXI Rule 58(2) of Code of the Civil Procedure,1908, the executing Court is empowered to adjudicate the questions relating to right, title or interest in the property attached in the claim petition.= Validity of an agreement of sale but not sale deed, can be decided by the executing court despite of having an exparte specific performance decree, in a claim petition under Or. 21, rule 58 of C.P.C. = in the case on hand, the agreement of sale is not genuine, it is collusive in nature and it is brought into existence to defeat the fruits of the decree obtained by respondent No.1. The ownership of the property and/or right, title or interest therein may necessarily involve the determination of the validity or otherwise of the agreement of sale, as has been done by the executing Court in this case. Therefore, the contention raised by the learned counsel for the petitioner that the executing Court has got no jurisdiction and power to determine the validity of the agreement of sale cannot be accepted.

 PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9683

THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE B.N. RAO NALLA              
A.S. Nos.563; 626  OF 2012

01.03.2013    

Punumacha Ashok Raju @ Ashok s/o. Sitarama krishnam Raju  

Indukuri Venkata Gopala Krishnam Raju and two others

Counsel for the Appellant::  Mr. Venkateswarlu Chakkilam

Counsel for Respondent No.1: Mr.M.Adinarayana Raju

<GIST:

>HEAD NOTE:  

Referred Cases:
1 (1990) 3 SCC 291
2 (1991) 1 SCC 715
3 2004 (1) ALT 655
42004 (2) ALT 751
5  2004(2) ALT 780
6 2010 (4) ALD 312

APPEAL SUIT Nos.563 AND 626 OF 2012    
COMMON JUDGMENT: (per Hon'ble Sri Justice B.N. Rao Nalla)  

These appeals are filed assailing the common order dated 28th June, 2012 in
E.A.No.1 of 2012 in E.P. No.1 of 2012 in O.S.No.10 of 2001 (old E.A.No.30 of
2007 in E.P. No.56 of 2006) and E.A. No.4 of 2012 in E.P.No.2 of 2012 in
O.S.No.22 of 1999 (old E.A. No.29 of 2007 in E.P.No.55 of 2006) respectively, on
the file of the Additional District Judge, West Godavari, Kovvur.

2.      The appellant filed claim petitions in E.A.No.1 of 2012 and E.A. No.4 of
2012 for raising the attachment of item No.3 of the E.P. schedule property.  In
both the EPs, the E.P. schedule property is one and the same.

3.      For the sake of convenience the parties hereinafter referred to as they
arrayed in the claim petitions.

4.      The brief averments of the claim petitions are as follows:
Respondent No.1 filed two different suits O.S.No.10 of 2001 and O.S. No.22 of
1999 for recovery of amount based on the different promissory notes and obtained
attachment before judgment, later the suits were decreed.
Respondent No.1 filed
E.P. Nos. 1 and 2 of 2012 seeking sale of three (3) items of the E.P. Schedule
property.  In both the E.Ps, the E.P. schedule property is one and the same.
Since respondent No.1 filed E.Ps, the petitioner filed claim petitions in
E.A.Nos.1 and 4 of 2012 raising the attachment against item No.3 of E.P.
schedule property.

5.      The case of the petitioner is that he purchased item No.3 of the E.P.
schedule property in both the E.Ps from respondent No.3  for a sale
consideration of Rs.10,50,000/- under an agreement of sale dated 20.10.1998 and
he paid Rs.4,00,000/- as earnest money.
 Later, he paid Rs.3,50,000/- on
05.09.2001 and Rs.2,90,000/- on 03.08.2004 and expressed his wiliness to perform
his part of contract and demanded respondent No.3 to execute regular sale deed
but she was avoiding to execute the same. 
 He came to know that the said
property being brought to sale in the E.Ps. filed by respondent No.1.
Therefore, the petitioner filed claim petitions in E.A.Nos.1 and 4 of 2012.

6.      The respondent No.1 filed counter stating that 
 the claim petitioner is no
other than the son -in -law of the own sister of respondent No.2 - Satyavathi,
and respondent No.3 - Kavitha is no other than the daughter- in -law of
respondent No.2.  
Respondent No.1 filed suit O.S. No.10 of 2001 against
respondent Nos. 2 and 3 and suit O.S.No.22 of 1999 against respondent Nos.2 and
3 and son of respondent No.2 for recovery of the amount and the suits were
decreed against the respondents and their properties were brought to sale.   To
defeat the fruits of the decrees, respondent Nos. 2 and 3 got filed these claim
petitions collusively through this petitioner.  Further, in order to avoid
payments of debt, respondent No.2 filed O.P. No.307 of 2004 for probate based on
the alleged will said to have been executed by her husband, and her son filed
I.P. No.69 of 2005 to avoid debts to the third parties.

7.      Respondent Nos.2 and 3 were set ex parte.

8.      Based on the pleadings, the execution Court framed the following points
for consideration.
i.    Whether the claim of the petitioner on the strength of agreement of sale dated 20.10.1998 for the raising of the attachment over the petition schedule property (item No.3) of the E.P. Schedule property in both the E.Ps is bonafide
or 
whether these petitions are the outcome of the collusion between the petitioner and the respondent 2 and 3 as contended by the 1st respondent/Dhr?
ii. ` Whether the petitioner is entitled for the raising of the attachments over the petition schedule properties in both the petitions?
iii.   To what relief?


9.      Claim petitioner was examined as PW.1 and Exs.A.1 to A.4 were marked,
whereas respondent No.1 was examined as RW.1 and Exs. B.1 to B.22 were marked in  
E.A.No.1 of 2012, which was adopted in E.A.No.4 of 2012.

10.     The execution Court taking into consideration the material made available
on record and after hearing both sides,
dismissed the claim petitions holding
that the agreement of sale is fabricated and collusive one and the attachment of
E.P. schedule property cannot be raised.
Aggrieved thereby, the petitioner
filed these Appeal Suits.

11.   Heard the learned counsel for the petitioner (appellant herein) and the
learned counsel for respondent No.1.

12.     The learned counsel for the petitioner contended that
  the executing Court
ought to have seen that the attachment before judgment is subsequent to the execution of agreement of sale by respondent No.3 and that when respondent No.3 is avoiding to execute the sale deed, the petitioner filed suit O.S. No.52 of 2006 for specific performance of the agreement and obtained a decree.  
The
learned counsel contended that the executing Court has no jurisdiction to hold that the decree obtained by the petitioner from a competent civil Court in O.S.No.52 of 2006 is a collusive one.  
The learned counsel contended that the
executing Court has erred in holding that non filing of the agreement of sale in
claim petitions is a strong suspicious circumstance to disbelieve the case of
the petitioner, in fact, the petitioner filed certified copy of the agreement of
sale.
The learned counsel contended that
the executing Court has travelled
beyond its scope in holding that neither the scribe nor the attesters of the
agreement of sale were examined, 
when the competent civil Court having satisfied with the evidence adduced by the petitioner, passed the decree in O.S.No.52 of 2006 for specific performance of agreement.  
The learned counsel contended that
the executing Court ought to have seen that since the agreement of sale is prior
to the attachment before judgment, the only remedy available to respondent No.1
is to file a suit questioning the validity of the decree obtained by the
petitioner.

13.     The learned counsel for the petitioner relied on the decisions in
Vannarakkal K. Sreedharan v. Chandramaath Balakrishnan1, 
Hamda Ammal v.     Avadiappa Pathar2,
 Madhavarapu Haranadhababa v. Kaligineedi Mahalakshmamma      
(died) per Lr3, 
T.Nabi Saheb v. V.P. Sivaiah4, 
Adinarayana v. S.Gafoor Sab5, and
Gopisetti Venkata Lakshmi Narasimharao Venkata Ramayya v. Satya Financial    
Services Narasapuram6, in support of his contentions.

14.     On the other hand, the learned counsel for respondent No.1 submitted that
in order to defeat the fruits of the decree obtained by respondent No.1,
respondent Nos. 2 and 3 have brought the collusive and fabricated agreement of
sale in to existence through the petitioner and based on that collusive
agreement of sale, ex parte decree was obtained and filed the present
claim petitions.  
The learned counsel submitted that the agreement of sale is
unregistered one and it cannot be relied on, further, there is no proof with
regard to payment of sale consideration by the petitioner to respondent No.3
under agreement of sale.
The learned counsel submitted that the executing Court
has given cogent and convincing reasons while passing the impugned order, and as
such, it does not suffer from any infirmity warranting interference from this
Court and the appeal suits are liable to be dismissed.

15.     Having regard to the submissions made on either side and the facts and
circumstances of the case, the point that arises for consideration is whether
there are any grounds for allowing these appeals?

16.     It is seen that the respondent No.1 filed two separate suits     i e. O.S.
No.10 of 2001 against respondent Nos. 2 and 3 and O.S. No. 22 of 1999 against
respondent Nos. 2 and 3 and son of respondent No.2 for recovery of amount based
on promissory notes and he also filed petition for attachment before judgment
and the E.P. schedule property was attached on 16.06.1999 and the attachment was
made absolute on 17.07.2001.  Later, the suits were decreed and respondent No.1
initiated execution proceedings vide E.P. Nos.1 and 2 of 2012 for sale of the
E.P. schedule property.  In both the EPs, the E.P. schedule property is one and
the same.   Meanwhile, the petitioner filed the claim petitions in E.A.Nos.1 and
4 of 2012 for raising attachment of item No.3 of the E.P. schedule property
stating that he entered into an agreement of sale with respondent No.3 on
20.10.1998 and as she did not come forward to execute the registered sale deed,
he filed O.S. No.52 of 2006 for specific performance of agreement on the file of
the I Additional District Judge, Eluru.
After filing of the clam
petitions, the petitioner obtained ex parte decree in O.S. No.52 of 2006.
The
petitioner is son- in- law of the sister of respondent No.2, and respondent No.3
is daughter- in -law of respondent No.2.   
It is pertinent to note that the
agreement of sale was not put to proof in the suit filed by the petitioner as
respondent No.3 did not contest the suit and the petitioner obtained ex parte
decree.  
Even respondent No.3 did not contest the E.P. proceedings initiated by
the petitioner for execution of sale deed.  
Further, the petitioner has not
filed the agreement of sale in the claim petitions.  
The petitioner did not
examine the scribe or the attesters of the agreement of sale.  
The agreement of sale was not registered. 
The respondent No.2, who is mother- in- law of
respondent No.3, filed written statement in O.S.10 of 2001 on 03.09.1999 wherein
she did not mention about the alienation of the E.P. schedule property in favour
of the petitioner.

17.     Petitioner as PW.1 deposed that he did not know whether the E.P. schedule 
property is the ancestral property or the self acquired property of respondent
No.3 and he did not know whether the source of title was recited in the
agreement of sale.  
He deposes that one of the attesters of agreement of sale is
the husband of respondent No.3 and he could not say the address and surname of 
the other attester of the agreement of sale.  He did not know the full name and
address of the scribe. 
 He deposed that he has no relationship with respondent
Nos.2 and 3 and son of respondent No.2 and he also deposed that he does not know  
whether his mother - in - law and respondent No.2 are own sisters.  
He deposed
that he did not make enquiry about the existing encumbrances over the property
he purchased under the agreement of sale. 
He deposed that he is an engineering
graduate and civil contractor.  He deposed that  his income tax returns does not
disclose the purchase of the property from respondent No.3 under agreement of
sale dated 20.10.1998 and that he made part payments towards the transaction on 
different dates.  
He deposed that the property purchased by him is still in the
enjoyment of respondent No.3 and she has been enjoying the income therefrom. 

18.     From the above circumstances, a shadow is cast upon the genuinity of the
agreement of sale and it is under a cloud.
Unless and until the agreement of
sale is held to be a genuine one, the question of attaching any value to the
sale deed does no arise, and as such no importance can be attached either to the
agreement of sale or the sale deed.  
 If there is sufficient proof that an
agreement of sale was executed in the ordinary course prior to the date of
attachment and in pursuance of such genuine transaction if a sale deed is
executed subsequent to the date of attachment, then only the attachment does not
prevail over the pre-existing contract of sale.
19.    As per Order XXI Rule 58(2) of Code of the Civil Procedure,1908, the executing Court is empowered to adjudicate the questions relating to right, title or interest in the property attached in the claim petition.

20.     In Vannarakkal K. Sreedharan's case (supra 1),
the Apex Court held that
sale will prevail over the attachment as contractual obligation created by the
pre-attachment agreement of sale is in respect of ownership of the land while
the attachment is only of right, title and interest of the judgment debtor.
But, in the case on hand, the agreement of sale is not genuine, it is collusive
in nature and it is brought into existence to defeat the fruits of the decree
obtained by respondent No.1.  
The ownership of the property and/or right, title
or interest therein may necessarily involve the determination of the validity or
otherwise of the agreement of sale, as has been done by the executing Court in
this case.  
Therefore, the contention raised by the learned counsel for the
petitioner that the executing Court has got no jurisdiction and power to
determine the validity of the agreement of sale cannot be accepted.

21.     In Hamda Ammal's case (supra 2), the Apex Court held that sale deed 
executed prior to attachment before judgment can be registered subsequently and
will prevail over the attachment.  
In the case on hand, respondent No.3 executed
an alleged agreement of sale dated 20.10.1998 and as such, the above decision is
not applicable to the facts of this case.

22.     In Madhavarapu Haranadhababa's case (supra 3), the attachment before 
judgment is after execution of the regular sale deed by the judgment debtor
therein. This decision is also not applicable to the facts of the case on hand
since respondent No.3 executed only the alleged agreement of sale and not the
sale deed.

23.     In T. Nabi Saheb's case, (supra 4), 
the decree holder is  known about
executing of agreement of sale by the judgment debtor  in favour of third party
and at the time of agreement of sale, the property in question was delivered to
third party.  
But in the case on hand, the transaction took place behind the
back of respondent No.1 and respondent No.2, who filed written statement in O.S.
No.10 of 2001, did not mention about the alleged transaction.  
Further,
possession was not delivered to the petitioner at the time of the alleged
agreement of sale.

24.     The decision in Adinarayana v. S. Gafoor Sahab (supra 5) is not applicable
to the case on hand as the agreement of sale is not genuine, it is collusive in
nature and it is brought in to existence, and as such, the alleged agreement of
sale would not invalidate the effect of attachment before judgment.

25.     In Gopisetti Venkata Lakshmi Narasimharao Venkata Ramayya' case (supra 6),   
the agreement of sale is registered one, whereas in the case on hand, the
agreement of sale is not registered and fabricated.

26.     Therefore, having regard to the facts and circumstances of the case and in
the light of the above discussion, we are of the opinion that the executing
Court came to a right conclusion in refusing the relief sought for by the claim
petitioner and we find no grounds to interfere with the well reasoned impugned
common order dated 28.06.2012 in E.A. No.1 of 2012 in E.P.No.1 of 2012 in O.S.
No.10 of 2001 and E.A.No.4 of 2012 in E.P.No.2 of 2012 in O.S.No.22 of 1999
passed by the Additional District Judge, West Godavari, Kovvur.

27.     In the result, the Appeal Suits are dismissed.  There shall be no order as
to costs.
__________________
V. ESWARAIAH, J
___________________
B.N. RAO NALLA, J

Date:01.03.2013

Order VII Rule 14, Order XII Rule 2 and Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) and Section 49 of the Registration Act, 1908= The defendant in the said suit fled I.A.No.653 of 2012 under Order VII Rule 14, Order XII Rule 2 and Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) and Section 49 of the Registration Act, 1908 praying to admit the sale deeds and other unregistered documents of sale for collateral purpose and to mark the same. The said petition was dismissed on the ground that Section 35 of the Indian Stamp Act, 1899 is a bar for admitting those documents.= in view of the bar Under Section 35 of the Stamp Act, 1899, which provides that any document cannot be received as evidence for any other purpose, unless the stamp duty and penalty is paid.

CRP 941 / 2013

CRPSR 5248 / 2013

PETITIONER RESPONDENT K. S.BABU @ SEETHAKAYALA BABU   VS SADHIKA BASHA & 7 OTHERS PET.ADV. : SIDDHIVARDHANA RESP.ADV. :  SUBJECT: ARTICLE 227 DISTRICT:  CHITTOOR

HON'BLE SRI JUSTICE K.C. BHANU

CIVIL REVISION PETITION No.941 of 2013

O R D E R:-

This Civil Revision Petition under Article 227 of the Constitution of India, is filed challenging the order, dated 09.10.2012, passed in I.A.No.653 of 2012 in O.S.No.138 of 2006 on the file of the I Additional Junior Civil Judge, Chittoor.

2.      The petitioner herein is the defendant and respondents herein are the plaintiffs in O.S.No.138 of 2006.  For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the trial Court

3.      The defendant in the said suit fled I.A.No.653 of 2012 under Order VII Rule 14, Order XII Rule 2 and Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) and Section 49 of the Registration Act, 1908 praying to admit the sale deeds and other unregistered documents of sale for collateral purpose and to mark the same.  The said petition was dismissed on the ground that Section 35 of the Indian Stamp Act, 1899 is a bar for admitting those documents. Challenging the same, the present application is filed. 

4.      The learned counsel for the petitioner contends that under the proviso of Section 49 of Registration Act, 1908, the document can be used for collateral purpose.  But the said contention cannot be accepted in view of the bar Under Section 35 of the Stamp Act, 1899, which provides that any document cannot be received as evidence for any other purpose, unless the stamp duty and penalty is paid.  Therefore, the order under challenge needs no interference by this Court and the Civil Revision petition is devoid of merits. 

5.      Accordingly, the Civil Revision Petition is dismissed.   However, this order will not preclude the petitioner from presenting those documents before the Court below for marking after paying necessary stamp duty and penalty.  No costs.  Miscellaneous Petitions, if any, pending in the C.R.P. shall stand closed.

______________________

JUSTICE K.C.BHANU

15^th March 2013

sr/pn

                        HON'BLE SRI JUSTICE K.C.BHANU

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CIVIL REVISION PETITION No.941 of 2013

 

 

Dated:15.03.2013

sr/pn

Order XVI Rule 3 read with Sec.151 of the Code of Civil Procedure, 1908= an application filed under Order XVI Rule 3 read with Sec.151 of the Code of Civil Procedure, 1908 seeking issue of a witness summon to the former Sub-Registrar of Guntur one Mr. M. Abraham, presently working as District Registrar, Nandyal, Kurnool District for recording his testimony of execution of Ex.A2-Will. - as per the provisions of Sec.74 of the Evidence Act, Ex.A2-registered Will is a public document and certified copies thereof can be proved and since the Sub-Registrar who registered the Will is a public authority, courts are entitled to presume that judicial or officials acts have been regularly performed. The court below further held that the Sub-Registrar who registered the Will cannot be a witness either to the execution or attestation of the Will and that all these circumstances only establish that the application is filed on frivolous and irrelevant grounds to protract the litigation in a suit of the year 2006. This Court finds no error in exercise of discretion by the court below in rejecting I.A.No.1192 of 2012 in O.S.No.445 of 2006, warranting supervisory intervention under Article 227 of the Constitution.

CRP 687 / 2013

CRPSR 3930 / 2013

PETITIONER RESPONDENT DASARI BHANU PADMA   VS KATURI BHASKARA RAO & ANOTHER PET.ADV. : ANANTHA KRISHNA RESP.ADV. :  SUBJECT: ARTICLE 227 DISTRICT:  GUNTUR

THE HONOURABLE SRI JUSTICE

GODA RAGHURAM

CIVIL REVISION PETITION No. 687 of 2013

Dated: 22-2-2013

Oral Order:

          This revision under Article 227 of the Constitution is misconceived.  The plaintiff in O.S.No.445 of 2006 has filed this revision against the order dated 21-9-2012 on the file of the Principal Senior Civil Judge, Guntur, rejecting I.A.No.1192 of 2012, an application filed under Order XVI Rule 3 read with Sec.151 of the Code of Civil Procedure, 1908 seeking issue of a witness summon to the former Sub-Registrar of Guntur one Mr. M. Abraham, presently working as District Registrar, Nandyal, Kurnool District for recording his testimony of execution of Ex.A2-Will.  

O.S.No.445 of 2006 was filed by the revision petitioner for declaration of title on the basis of Ex.A2-registered Will.  

Recording evidence in the suit was concluded and the suit was coming up for arguments.  At that stage and six years after the institution of the suit was the application I.A.No.1192 of 2012 filed by the revision petitioner.

          In the affidavit filed in support of the petition, the petitioner pleaded that the then Sub-Registrar who had registered Ex.A2-Will was transferred and only recently she learnt about the whereabouts of the then Sub-Registrar; that since all these years she could not secure information about the whereabouts of the then Sub-Registrar who registered Ex.A2-Will and and his testimony is essential to prove the Will.  

The defendant contested this application asserting that the application was filed only for protracting the proceedings, that the Sub-Registrar was discharging his official functions as per provisions of the Registration Act and cannot be summoned as a witness to prove the execution and attestation of the Will; and hence the application should be rejected.

          The court below while rejecting the application observed that as per the provisions of Sec.74 of the Evidence Act, Ex.A2-registered Will is a public document and certified copies thereof can be proved and since the Sub-Registrar who registered the Will is a public authority, courts are entitled to presume that judicial or officials acts have been regularly performed. The court below further held that the Sub-Registrar who registered the Will cannot be a witness either to the execution or attestation of the Will and that all these circumstances only establish that the application is filed on frivolous and irrelevant grounds to protract the litigation in a suit of the year 2006.  This Court finds no error in exercise of discretion by the court below in rejecting I.A.No.1192 of 2012 in O.S.No.445 of 2006, warranting supervisory intervention under Article 227 of the Constitution.

          The revision is misconceived and is accordingly dismissed.

          Sri Anantha Krishna, learned counsel for the petitioner would however submit that the petitioner would file an application for appropriate relief including for summoning the official records from the Sub-Registrar’s Office where Ex.A2-Will was registered and liberty for the same be given.  No such liberty is required from this Court.  If the petitioner files any such application, the same may be considered by the court below in accordance with its discretion and having regard to the facts and circumstances of the case.  This revision is without merits and is accordingly dismissed at the stage of admission.

________________________

GODA RAGHURAM, J

Date: 22-2-2013.

GRR

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

The Hon’ble Sri Justice B.Chandra Kumar

Appeal Suit No.144 of 2012

Dated 9^th August, 2012

Judgment:

          The appellant filed this appeal challenging Order, dated
27-01-2012, passed by the learned Senior Civil Judge, Darsi, in CFR.No.90 of 2012, refusing to register the suit filed by him on the ground that the same is barred by limitation .

          The plaintiff filed the suit for specific performance basing on agreement of sale, dated 13-11-2008.  As per the terms and conditions of the agreement of sale, the balance amount of Rs.4 lakhs out of the total sale price of Rs.9 lakhs was to be paid within two months from the date of expiry of the limitation of the said agreement of sale.  

The case of the appellant is that though he had been requesting the respondent to receive the balance sale consideration and register the sale deed in his favour, the respondent did not come forward; that therefore, he got issued a legal notice to the respondent on
12-10-2011; that the respondent acknowledged the same and got issued a reply notice on 17-10-2011. 

          The learned Counsel for the appellant contended that the cause of action for filing the suit arose on 13-11-2008, which is the date of execution of the agreement of sale, and also on 12-10-2011, when he got issued a legal notice, and on 17-10-2011, when the respondent issued reply, refusing to perform his part of contract.  But, the lower Court erroneously rejected the plaint on the ground that the date of the suit document being 13-08-2008, the suit ought to have been filed on or before 13-11-2011, on which date the period of limitation expires.

          The Court below, taking into consideration the period of two months for paying the balance of sale consideration amount from the date of the agreement of sale, came to the conclusion that suit is barred by limitation.  If the date of document or the period of two months as agreed by the parties for payment of balance sale consideration is taken into consideration, the conclusion arrived at by the Court below appears to be correct.  But, however, the fact remains that the plaintiff got issued legal notice on 12-10-2011, and according to Counsel for the appellant, as per the second limb of Article 54, the period of limitation starts on 17-10-2011, when the respondent issued reply notice refusing to perform his part of contract. 

          Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows:

“For Specific performance of a contract:

Three years

The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”

          The learned Counsel for the appellant relied on a judgment of the apex Court in Ahmmadsahb Abdul Mila vs.  Bibijan[1],

 wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. 

          Per contra, the learned Counsel for the respondent submits that from the plaint averments, it is clear that the suit is barred under by limitation and therefore, the Court below while exercising powers under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, has rightly rejected the plaint.

          The issue that may arise for consideration is whether second limb of Article 54 is applicable to the facts of the present case when no specified date in the calendar is mentioned i.e., whether limitation of three years period commences from the date when the plaintiff has noticed that performance is refused.

          Therefore, it appears that whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold.    In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. 

          The Appeal is allowed accordingly. In the circumstances, there shall be no order as to costs.  However, the parties are at liberty to take all the pleas available to them including the plea of limitation before the Court below and the Court below shall consider the same in accordance with law. 

_____________________

B.Chandra Kumar, J

9^th August, 2012

lur

---

[1] 2009 (5) SCC 462