How to ascertain limitation in suit for specific performance of contract if purchased property was under land acquisition?

At the outset, it is required to be noted that the original Plaintiff instituted the suit for specific performance of agreement to sell dated 7.5.1981 (Ex. A1). It is not in dispute that under the agreement to sell dated 7.5.1981, the sale deed was to be executed within a period of four months from the date of execution of agreement to sell i.e. 7.5.1981. However, thereafter time was extended by a further period of eight months i.e. up to 6.5.1982. However, before any further steps could be taken by the Plaintiff and the original vendor, the suit property was subjected to the acquisition by the State Government. It was the Plaintiff who made a representation to the Assistant Collector and requested for deletion of the property from the acquisition. A similar representation was made by the original vendor also. It is required to be noted that in the representations both the vendor and the vendee specifically stated that the land in question has been sold in favour of the Plaintiff and that he is in possession. Therefore, the original vendor as such admitted the execution of the agreement to sell dated 7.5.1981 as well as handing over the possession of the suit property to the Plaintiff. Therefore, the learned trial Court as such rightly believed the execution of the agreement to sell dated 7.5.1981 as well as handing over of possession to the Plaintiff. The same is rightly confirmed by the High Court.

7.2. However, the trial Court dismissed the suit solely on the ground that the suit for specific performance was barred by limitation applying Article 54 of the Limitation Act. On the other hand, it was the specific case on behalf of the Plaintiff that in the facts and circumstances of the case Article 113 of the Limitation Act shall be applicable as the suit was filed within a period of three years when the right to sue accrued. According to the Plaintiff, the right to sue accrued when the Plaintiff served a notice upon the Defendants to execute the sale deed and the Defendants refused to execute the sale deed. At this stage, it is required to be noted that under the agreement to sell it was for the vendor to settle all the disputes in the property. As the land in question was subjected to the acquisition and thereafter the acquisition proceedings came to be quashed and set aside at the instance of the Plaintiff in the year 1984/1985 and thereafter the Plaintiff served a legal notice upon the Defendants on 20.01.1986 calling upon the Defendants to execute the sale deed which came to be refused by reply notice dated 31.1.1986 and thereafter the suit for specific performance was preferred, as rightly observed by the High Court, Article 113 of the Limitation Act would be applicable and not Article 54 of the Limitation Act as applied by the learned trial Court. We are in complete agreement with the view taken by the High Court in applying Article 113 of the Limitation Act. As observed hereinabove, the learned trial Court dismissed the suit solely on the ground that the suit is barred by limitation considering Article 54 of the Limitation Act though all other findings with respect to the execution of agreement to sell., the Plaintiff was put in possession etc. were held to be in favour of the Plaintiff.

7.3. Therefore applying Article 113 of the Limitation Act to the facts of the case on hand and the conduct of the Plaintiff all throughout to protect not only his possession but to protect the property from acquisition and that he was always ready and willing to perform his part of the agreement to sell/contract, the High Court has rightly decreed the suit for specific performance. We are in complete agreement with the view taken by the High Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1204 of 2020 

Decided On: 06.02.2020

 Vundavalli Ratna Manikyam  Vs. V.P.P.R.N. Prasada Rao

Hon'ble Judges/Coram:

Arun Mishra, Vineet Saran and M.R. Shah, JJ.

 Citation: (2020) 3 SCC 289

Print Page

Whether succession certificate can be treated as decree and will operate as res judicata?

 This question was also considered by this Court in the case of Madhvi
Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and
Ors. : AIR2000SC2301 . In this case after having considered the provisions
of Sections 370 to 390 of the Indian Succession Act as well as Section 11 of
the CPC, it has been held that any adjudication under Part X does not bar the
same question being raised between the same parties in a subsequent suit or
proceeding. It has been held that Section 387 of the Indian Succession Act
takes a decision given under Para X of the Indian Succession Act outside the
purview of Explanation VIII to Section 11 of the CPC. It has been held that
Section 387 gives a protective umbrella to ward off from the rays of res
judicata to the same issue being raised in a subsequent suit or proceeding.
We are in full agreement with the view expressed in this case.”
It would be thus seen that the grant of succession certificate in favour of the
petitioner cannot operate even as res judicata in a subsequent suit as the
succession court only prima facie determines the right of a person entitled to
collect the debts of the deceased. Therefore in the background of this settled
legal position, the succession certificate cannot be treated as a decree which
can be said to have conclusively determined the rights of the parties and in
any event of the matter in the present case the bank and other debtors are
not before the court nor their rights are involved for any determination. The
succession certificate therefore cannot be treated as a decree as envisaged
under Section 2(2) of the Code of Civil Procedure. The grant of succession
certificate in favour of the respondent thus entitled her to file the recovery
suit within a period of three years from the date of the grant of said
succession certificate. There is no particular Article in the Limitation Act
which deals with the limitation period to recover the statutory dues and
therefore the residuary Article 113 of the Limitation Act would attract to
such a suit and the period of three years would be reckoned from the date
when the right to sue is accrued. In the facts of the present case, the right to
sue in favour of the appellant accrued on the date of grant of the succession
certificate or at the most when the respondent had presented the application
with the bank to seek release of the said statutory dues of the deceased
employee. The recovery suit was filed by the respondent on 6.2.2002,
whereas the succession certificate was granted on 4.6.97 and it was
submitted by her to the appellant bank on 6.6.97. Therefore, undoubtedly the
suit of the respondent was hopelessly barred by time.
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SUIT FOR RECOVERY

Judgment delivered on: 15.03.2011
RFA No.141/2003
STATE BANK OF INDIA  Vs. SMT.VIJAY LAKSHMI THAKRAL 

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.

Print Page