Mr. M has sold property to Mr. N and after that Mr. N has entered into an unregistered sale deed on 12 guntas of land with Mr. B in the year 16/10/2006 for consideration of Rs. 2,40,000/- and accepted Rs. 50,000 as advance. But on 26/10/2006 Mr. M brothers and his filed partition suit (161/2006) claiming 12 guntas as joint family property. So, Mr. N not executed sale deed in favour of Mr. B and so within 3 years Mr. B filed case (217/2009) and Mr. N not attended the case but got Ex-party orders (5/10/2010) directing to execute sale within 3 months or if he fails, Mr. B has liberty to deposit balance amount of 1,90,000 to court and appoint commissioner to execute sale deed. But Mr. B after getting decree not filed execution case or even not paid balance consideration since he got the knowledge of case pending (161/2006) which was filed by Mr. M brother’s family members in respect of 12 guntas. In between after filing written statement Mr. N expired in 2014. In 2019 Mr. M brothers and his sons filed case (161/2006) got judgment (Mr. M not filed written statement also but only Mr. N filed WS and expired in between in 2014) stating that 6 guntas belongs to Mr. M brothers and sale made to Mr. N to the extent of 06 guntas is illegal (which means, remaining 6 guntas is left for Mr. M and not for his brothers) After this Mr. B filed execution case (47/2018) for decree but now after Mr. N death as a legal heir wife of him Mr. S filed IA for dismissal of execution case by stating all the facts of the above cases and taking defence that Mr. B has not deposited any amount to court of balance consideration after 217/2009 orders and even not filed for execution and as such it is should be dismissed Mr. B has filed execution case after lapse of 10 years and what he waited for the judgment of 161/2006 is suppressed in the court and later on filed execution case and as such Ex-47/20018 should be dismissed. Also Mr. N wife is taking contention that decree holder has benefit of having advance sale consideration with him for as long as 16 years and not approached court for extension of time for deposit of sale consideration. Now IA filed by Mr. N wife was dismissed by lower court and as such she filed WP in HC Question 1. Not depositing amount to the court and waiting for another case judgment is default from Mr. B 2. Mr. B even now cannot deposit full conisation of Rs. 1,90,000 since partly of 0.06 guntas was in favour of Mr. N in the court but not entire 0.12 guntas as stated in deed of sale. So whats this remedy for this 3. Is there merit in this case for Mr. B to get his lawful share of land 4. In HC can we approach court to re-open case of 161/2009 which was settled partly against Mr. B absence in the court. 5. If HC again dismisses the IA filed by Mr. N wife then can she file new case against Mr. B in lower court to get stop proceedings of Execution case off Mr. B 6. Advice best route with the interest of Mr. B
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1)it is necessary to peruse order passed by trial court for dismissal of IA
2) as against impugned order dismissing IA you have to file appeal from order and not writ petition
3) B has failed to comply with court orders for depositing balance sale consideration in court for period of 10 years .
4) basically N / his legal heirs should have filed appeal against decree passed in favour B
B has a good case and law is in his favour.
N's wife's case at high court is devoid of merits.
Even after dismissal of high court case, she cannot be able to file a fresh case owing to rea judicata.
4. Yes
5. Yes.
The case is maintainable in HC as well as execution in lower court till 12 yrrs of date of execution order
In this case the main issues facing by Mr. B are 1. In Writ petition Mr. N wife strongly objecting that the balance amount of 1.90 lakhs is not paid to the court within time to process execution case and as such, sale deed as well as exaction case should be cancelled. 2. But however, Mr. B not paid balance sale consideration since there was a case pending before one more court (161/2006) and awaited for the same. Question 1. whether balance consideration which is not paid after decree tot the court is valid reason to dismiss the execution case and can HC declare unregistered deed as null and void based on such point of non payment of balance consideration. 2. What is the best remedy for Mr. B to get his lawful share in this case since main weak point from Mr. B side is non payment of balance consideration after decree of court and that will be the strongest contention taken by her in HC and praying to cancel deed of sale and to cancel execution process in lower court. 3. Suggest best remedy to Mr. B in the above case.
B has failed to comply with court orders for deposit of balance consideration in court fir execution of sale deed
2) court can dismiss his execution petition
3) B should deposit balance consideration in court immediately
1. There is 12 years time for filing execution petition hence the execution petition is not barred by law.
Therefore the writ filed by N's wife is devoid of merits.
2. . The Execution petition filed by B before the execution court has been taken on file, hence he has to proceed with the same, let him challenge the writ petition on merits in the meantime.
3. You can discuss with your lawyer on all such practical issues based on the prevailing circumstances.
1 . Yes it will declare it void on merits and not on sole ground of non registration
2. Settlement