Is ep maintainable
saran kumar
(Querist) 01 September 2014
This query is : Resolved
Decree for specific performance of sale of immovable property has been order by the trail court agaist 'A' in favor of 'B'.
'B' filled an executive petition by paying the balence sale consideration in the court.
'A' appeal before high court challenging the decree. Court stayed EP procedings.
'B' transferred the decree to new 'C' on receiving money through registered deed of assignment.
'B' requested high court to let him take his money as proceding are likely to take long time. Court allowed him to take his money on the undertakeing that he would re deposit if sale goes in his favour with in one month.
In the mean time 'C' tried to implead himself in the high court as a party as he got decree assigned by 'B'. High court directed him to apply in the execution court as execution petition is lying in the lower court.
'C' got himself impleaded in the execution court(but not in high court where appeal is lying) as second decree holder.
'C' requested the court to issue a cheque in his name for the amount paied by 'B'. B gave 'No objection'. 'C' has taken the money from the court.
Now,
'C' got in to settlement with 'A' with following terms.
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'A' will withdraw appeal.
'C' will pay(amount higher than the amount in the decree) 'A' on or before dd/mm/yy.
"if 'C' does not pay on or before dd/mm 'A' has liberly to deal with his property as he wish.
if 'A' does not register the property 'C' can approach competent court to get the "decree" already passes executed.
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'C' could not come up with sale consideration. So, 'C' paid 40% and 'A' and 'C' agreed to exted the time for 3 months
again 'C' could not come up with complete amount. 'A' and 'C' agreed to extend the time for 1 more month.
in the mean time 'A' got appeal withdrawn saying "parties got compromised" in the presence of counsel for 'A' and 'B'. As a consequence stay on EP is released.
'C' could not come up with money. caused a notice accusing 'A' demanded extra money and said he will approach court to get sale deed executed.
neither 'B' or 'C' could redeposit the 'decree' amount with in 1 month as said by high court order while allowing them(actually 'B') to with draw the amount
NOW, IS THE EXISTING EP MAINTAINABLE? SHOULD NOT THE 'C' FILE A DIFFERENT CASE BY PAYING CF FOR THE NEW AGREEMENT AMOUNT THEN GET DECREE.
Respected Experts I will be very thankful for your reply
T. Kalaiselvan, Advocate
(Expert) 04 September 2014
Paying additional CF by C does not arise because it was already agreed upon in the assignment by B to C hence no question of additional CF.
