Amit Arya vs. Kamlesh Kumari

2025 INSC 1486

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025
(Arising out of SLP(C)No.20091/2022)


DR. AMIT ARYA … APPELLANT(S)

Versus

KAMLESH KUMARI … RESPONDENT(S)


J U D G M E N T

SANJAY KAROL, J.

Leave Granted.
2. This appeal arises out of a judgment and order dated
th
8 August 2022 of the High Court of Punjab & Haryana at
Chandigarh in CR.No.979 of 2018 (O&M), titled Kamlesh
Kumari v. Dr. Amit Arya . The dispute pertains to the execution
of an ‘ agreement to sell ’ between the parties regarding a
Signature Not Verified
Digitally signed by
NAVEEN D
property located in the District of Panchkula. A certain sum of
Date: 2025.12.19
20:37:07 IST
Reason:
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money was deposited as ‘ earnest money ’, but the matter did not
1
proceed further. A suit for specific performance was decreed
2
by the Trial Court , which was eventually affirmed on second
3
appeal by the High Court. Seeking execution, the
plaintiff/decree holder, the appellant herein, filed the said
4
application , in which the respondent’s objections were
5
dismissed. The appeal against the dismissal of such objections
gave rise to the impugned judgment, which accepted the
objections and dismissed the execution petition.

BACKGROUND AND PREVIOUS PROCEEDINGS

We may, by way of a table, recall some important dates which
are essential to putting the dispute in context:

1
Civil Suit No. 47 of 2006
2 th
Addl. Civil Judge (Sr. Divn.) Panchkula, by judgment dated 14 May 2011
3 th
RSA 4080 of 2013 (O&M); judgment dated 8 February 2016
4
Execution Application No.35 of 2016
5 th
Judgment dated 20 January 2018.
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3. Facts are to the effect that :
3.1 The parties entered into an agreement to sell a plot
of land admeasuring 2 biswas, 10 biswasi situated in
th
Kalka, District Panchkula, on 11 December 2004. To that
effect, Rs.1,00,000/- was paid as ‘earnest money’.
3.2 The appellant filed a suit for specific performance
and permanent injunction against the Respondent,
restraining her from alienating the suit land by way of sale,
mortgage, gift, or otherwise in favour of any third party. In
the alternative, it was prayed that the appellant be paid
Rs.2,46,000/- with an interest @18% from the date of the
agreement till actual payment.
3.3 The Trial Court framed nine issues for
consideration, which read as under :
“1. Whether the defendant entered into an agreement
to sell dated 11.12.2004 with the plaintiff of the suit

6
Annexure P-5 to the paperbook
7
Annexure P-7 to the paperbook
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property, as detailed in the head note of the plaint,
situated in Kalka, Tehsil Kalka, District Panchkula, as
alleged.? OPP.
2. Whether the plaintiff is entitled for the relief of
possession, as prayed for.? OPP.
3. Whether the plaintiff is entitled for the relief of
permanent injunction, as prayed for.? OPD.
4. Whether the plaintiff is entitled for the alternative
relief for the recovery of Rs.2,46,000/- along with
interest @18% per annum from the date of its actual
realization, as prayed for.? OPP.
5. Whether the plaintiff has no cause of action to file
the present suit.? OPD.
6. Whether the suit of the plaintiff is not maintainable
in the present form.? OPD.
7. Whether the plaintiff has not come to the court
with clean hands,? OPD.
8. Whether the plaintiff is estopped form filling the
present suit by his own act and conduct? OPD
9. Relief.”

Issue No.1 was decided in favour of the appellant and,
consequently, Issue No.4 was rejected. Issue Nos.2, 3, 5, 6
and 8 were decided in favour of the appellant as a result of the
finding in Issue No.1 . Issue No.7 was not pressed by the
respondent-defendant but decided against the said party by the
Court. The relief granted by the Court, which is the genesis of
the present dispute, reads as under: -

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“18. As a sequel to findings of this court on the
aforesaid issues, the suit of the plaintiff succeeds and is
decreed with costs. Resultantly, the plaintiff is entitled
for possessions of the suit land and defendant is
directed to execute the sale deed in favour of the
plaintiff on receiving balance sale consideration of
Rs.8,05,000/- from the plaintiff, in terms of the
agreement to sell dated 11.12.2004 Ex.P1 within two
months from today, failing which the plaintiff shall be
at liberty to get executed the sale deed from the court
on deposit of necessary expenses. The defendant is
also retrained from alienating the suit land in favour of
any other person, except the plaintiff. Decree sheet be
drawn accordingly. File be consigned to the record
room, after due compliance…”

8
3.4 On First Appeal before Addl. District Judge,
Panchkula, it was held that the finding of the Trial Court
qua specific performance could not be sustained for the
reasons that, (a) no document of ownership had been
produced and proved; (b) the agreement to sell contained a
clause stipulating that if a sale deed was not executed
th
before the specified date of 10 March 2005 then the
appellant would be liable to pay double the amount of
earnest money, and the sale deed was indeed not executed
before the specified date; (c) the parties adduced evidence
regarding readiness and willingness but the same was not
considered in the judgment of the Trial Court, neither was
a specific issue framed to that effect, i.e., whether there

8
Civil Appeal No.94 of 2011 decided on 22.04.2013
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was any entitlement to the relief of specific performance.
As such, it was concluded that the respondent herein
entitled to recovery of double the earnest money, i.e.,
Rs.2,00,000/-.
3.5 The appellant herein preferred a second appeal
wherein the sole issue to be considered was whether the
appellant herein was entitled, either to specific
performance or to the grant of alternate relief. It was held
therein that the presence of a clause regarding the date by
which the sale deed had to be executed would not bar a suit
of specific performance. It was further held that neither
non-consideration of the affidavit nor the non-framing of
the issue regarding specific performance would be a reason
for the First Appellate Court to interfere with the finding of
the Trial Court. Insofar as the readiness and the
willingness is concerned, the Court concluded, on
appreciation of evidence and in consideration of the sum
total of circumstances, the appellant herein remained ready
and willing to perform his part of the agreement. As such,
the judgment of the First Appellate Court was set aside,
and that of the Trial Court was restored.
3.6 The appellant filed Execution Application No.35 of
th
2016 on 4 July 2016. Objections were filed thereagainst
rd
on 3 September 2016. The primary ground taken therein
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that the application was filed with a delay of 87 days
which is after the two months’ period provided by the
judgment and the decree does not exist in the eyes of law;
the balance consideration has not been paid even at the
time of filing the execution application which displays lack
of readiness and willingness to perform his part of the
contract; the delay cannot be condoned at any cost.
3.7 The Civil Judge, (Jr. Divisional)-cum-JMIC, Kalka
th
vide order dated 20 January 2018 dismissed the
objections. It is against the dismissal of such objections
that the impugned order came to be passed, taking the
opposite view, allowing the objections.
3.8 The High Court observed as follows :

“…The execution was filed on 04.07.2016 i.e. after
87 days of the 02 months extended time granted by this
Court and further part amount of Rs.7,39,700/- was
deposited on 26.08.2016 i.e. after about 138 days of the
extended time w.e.f. 08.04.2016 and finally even the
remaining amount of Rs.65,300/- was deposited on
30.12.2016 i.e. about 245 days with effect from the
extended time i.e. 08.04.2016.

From the conduct of the decree-holder, it is
apparent that though, he was willing to get the sale
deed executed but apparently he was not ready with the
money which he never deposited within 02 months
extended time as noticed above.

There is no dispute with regard to the judgments
cited by counsel for the respondent/judgment-debtor i.e.
Surinder Pal Soni’s case (supra) and Raman Kutty’s
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case (supra) , however, on facts the judgments are
distinguishable as in Surinder Pal Soni’s case (supra) ,
the plaintiff has deposited the balance sale
consideration within 01 month from the passing of the
original decree of the trial Court and in Raman Kutty’s
case (supra) , it is held that the application for extension
of time was filed before the Appellate Court whereas in
the instant case, the petitioner has not shown any
readiness to deposit the balance sale consideration with
the trial Court immediately within 02 months even,
after the judgment passed by this Court and never
moved any application before the Appellate Court/this
Court to allow him to deposit the balance money
subject to final outcome of the case.

In view of the judgment of the Hon’ble Supreme
Court in Prem Jeevan’s case (supra) , the time of 02
months w.e.f. 08.04.2016, does not automatically result
in extension of time merely by filing the execution
application. Even otherwise, in the absence of any
application filed by the respondent/judgment-debtor for
extension of time in view of Bhupinder Kumar’s case
(supra) , the decree becomes inexecutable.

It is worth noticing that the Executing Court has
wrongly assumed that in the light of the judgments
relied upon in the impugned judgment, the time stands
extended once the execution application is filed and
subsequently, the amount is deposited.

In fact, no such power lies with the Executing
Court as in view of the judgment in Raman Kutty’s
case (supra) relied upon by the decree-holder himself,
it is held that where there is default of making the
balance sale consideration, the application for extension
of time is maintainable before the Appellate Court
where decree of trial Court merged. Admittedly, no
application was filed after decision of the regular
second appeal judgment on 08.02.2016, for extending
the time and therefore, the Executing Court has
wrongly assumed that merely by filing the execution,
the time to deposit the balance amount stands extended
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as even otherwise, the Executing Court has no power to
extend the time even if an application is filed…”


4. Aggrieved by the judgment of the High Court, the
appellant is before us. The question that arises is with respect to
the two-month’ time limit imposed by the Trial Court. Given
that the execution application was filed beyond the said period,
could action be taken pursuant thereto. It is also to be
considered whether the judgment of the Trial Court would
merge with that of the High Court and in the absence of any
direction for executing the sale deed within a time bound period
the High Court was justified in interpreting the direction issued
by the Trial Court in decreeing the suit holding the period of
two months within which the sale was to be executed.
5. The Specific Relief Act, 1963 provides for specific
performance of a contract, etc. For our purposes, Section 28 is
relevant, which reads as under: -
“ 28. Rescission in certain circumstances of contracts
for the sale or lease of immovable property, the specific
performance of which has been decreed. —
(1) Where in any suit a decree for specific
performance of a contract for the sale or lease of
immovable property has been made and the purchaser or
lessee does not, within the period allowed by the decree or
such further period as the court may allow, pay the
purchase money or other sum which the court has ordered
him to pay, the vendor or lessor may apply in the same suit
in which the decree is made, to have the contract rescinded
and on such application the court may, by order, rescind
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the contract either so far as regards the party in default or
altogether, as the justice of the case may require.
(2) Where a contract is rescinded under sub-section (1),
the court—
(a) shall direct the purchaser or the lessee, if he has
obtained possession of the property under the
contract, to restore such possession to the vendor
or lessor, and
(b) may direct payment to the vendor or lessor of all
the rents and profits which have accrued in respect
of the property from the date on which possession
was so obtained by the purchaser or lessee until
restoration of possession to the vendor or lessor,
and if the justice of the case so requires, the refund
of any sum paid by the vendee or lessee as earnest
money or deposit in connection with the contract.
(3) If the purchaser or lessee pays the purchase money
or other sum which he is ordered to pay under the decree
within the period referred to in sub-section (1), the court
may, on application made in the same suit, award the
purchaser or lessee such further relief as he may be
entitled to, including in appropriate cases all or any of the
following reliefs, namely:—

(a) the execution of a proper conveyance or lease by
the vendor or lessor;
(b) the delivery of possession, or partition and separate
possession, of the property on the execution of
such conveyance or lease
(4) No separate suit in respect of any relief which may
be claimed under this section shall lie at the instance of a
vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall
be in the discretion of the court.”
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6. It is important to take note of the scope of Section 28.
Reference may be made to V.S. Palanichamy Chettiar Firm v.
9
C. Alagappan . The relevant part of Para 15 is extracted below:

“15. This Court observed that when the decree specifies
the time for performance of the conditions of the decree,
on its failure to deposit the money, Section 28(1) itself
gives power to the court to extend the time on such terms
as the court may allow to pay the purchase money or other
sum which the court has ordered him to pay. The Court
held, after noticing the conflict of decisions by the
Bombay High Court and the Andhra Pradesh High Court,
that when the court which passed the decree and the
executing court is the same, application under Section 28
can be filed in the executing court. However, where a
decree is transferred for execution to a transferee
executing court then certainly the transferee court is not
the original court and the executing court is not the “same
court” within the meaning of Section 28 of the Act. But
when an application has been made in the court in which
the original suit was filed and the execution is being
proceeded with, then certainly an application under
Section 28 is maintainable in the same court.”

7. Unquestionably, the power to extend the time granted
within the decree for performance of its conditions can be
extended on such terms as the Court may deem fit. However, it
is a matter of record that in this case no such extension was
granted. However, such non-grant of extension of time cannot,
in our view, be the end of the transaction. Taking such a view
would be a classic example of a hyper-technical approach
which, this Court has observed, ought to be eschewed [ see

9
(1999) 4 SCC 702
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10
Ramankutty Gupta v. Avara ]. We are supported in such a
view by a recent order of this Court in Ram Lal v. Jarnail
11
Singh , whereby it has been observed that, “the non-payment
of balance sale consideration within the time period fixed by the
Trial Court does not amount to abandonment of the contract
and consequent rescinding of the same. The real test must be to
see if the conduct of the plaintiff will amount to a positive
refusal to complete his part of the contract.”
8. In view of the above, the position that since the execution
th
has been filed beyond the 60-day period on the 87 day and,
therefore, the decree cannot be acted upon – is clearly contrary
to law.
9. On the issue of merger of decree, we may notice the
recent judgment of this Court in Balbir Singh & Anr. v. Baldev
12
Singh wherein Pardiwala, J. discussed in detail, the
application of the doctrine of merger as below :

“28. The doctrine of merger is founded on the rationale
that there cannot be more than one operative decree at
a given point of time. The doctrine of merger applies
irrespective of whether the appellate court has
affirmed, modified or reversed the decree of the trial
court. The doctrine has been discussed and explained

10
(1994) 2 SCC 642
11
2025 SCC OnLine SC 584

12
2025 SCC OnLine SC 103
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succinctly by this Court in Surinder Pal Soni v. Sohan
Lal (Dead) through Legal Representatives , (2020) 15
SCC 771 .
29. In Kunhayammed v. State of Kerala, (2000) 6 SCC
359 , while explaining the doctrine of merger, this Court
held thus:
“12. The logic underlying the doctrine of
merger is that there cannot be more than one
decree or operative orders governing the same
subject-matter at a given point of time. When a
decree or order passed by an inferior court,
tribunal or authority was subjected to a remedy
available under the law before a superior
forum then, though the decree or order under
challenge continues to be effective and
binding, nevertheless its finality is put in
jeopardy. Once the superior court has disposed
of the lis before it either way — whether the
decree or order under appeal is set aside or
modified or simply confirmed, it is the decree
or order of the superior court, tribunal or
authority which is the final, binding and
operative decree or order wherein merges the
decree or order passed by the court, tribunal or
the authority below. However, the doctrine is
not of universal or unlimited application. The
nature of jurisdiction exercised by the superior
forum and the content or subject 11 matter of
challenge laid or which could have been laid
shall have to be kept in view.”


13
10. Relying upon Chandi Prasad v. Jagdish Prasad , in
14
Shanthi v. T.D. Vishwanathan , this Court held that when a
higher forum entertains an appeal on merits, the doctrine of
merger would apply.

13
(2004) 8 SCC 724
14
(2019) 11 SCC 419
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11. In Ram Lal (supra), this Court was seized of a matter
wherein there was a delay of two years in filing the execution
petition and four years in depositing the balance sale
consideration.
12. In the present facts, it has been held by the Court below
that the appellant was ready and willing to perform his part of
the contract. The doctrine of merger, as we have already
discussed, means that at one point in time, only one decree can
subsist. If the order dismissing the objections has been set aside
and the execution petition dismissed, there is no decree that
could be executed, and as such, the question of extension of
time would not arise. Even otherwise, given the finding of
readiness and willingness, alluded to above, it would be justified
to accept that the delay of 27 days would not strike at the heart
of the agreement. The decree of the Trial Court would merge
with the final decision of the High Court.
13 . Given the above discussion, the judgment of the High
Court is set aside, and that of the executing Court dismissing the
objections filed by the respondent is restored to its original
number and status. Let a copy of this judgment be sent to the
Executing Court, which shall then proceed in accordance with
law to execute the decree of specific performance passed by the
Trial Court.

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With the above observations, the appeal is allowed.
Pending application(s), if any, shall stand disposed of.



………………………J.
(SANJAY KAROL)



………………………J.
(MANOJ MISRA)
New Delhi;
December 19, 2025.


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