Case Note & Summary
The petitioners, legal representatives of late Daulatrao Nitnaware, filed a writ petition challenging an order dated 25.11.2025 passed by the learned Civil Judge Junior Division, Kalmeshwar, rejecting their application at Exhibit 86 in Regular Darkhast No.10 of 2013. The application sought rescission of an agreement of sale dated 28.12.2001, which was the subject of a decree for specific performance of contract passed on 12.11.2010 in Regular Civil Suit No.71 of 2004 by the 6th Joint Civil Judge Senior Division, Nagpur. The suit was decreed ex-parte against the original defendant, Daulatrao Nitnaware. The decree directed the defendant to execute the sale deed within three months, failing which the plaintiff could get it executed through court, and to deliver possession. The petitioners, as legal representatives, had preferred an appeal against the ex-parte decree along with an application for condonation of delay, which was dismissed. The decree thus attained finality. In execution proceedings, the petitioners filed an application for rescission of the agreement, which was rejected by the Executing Court. The High Court, after hearing both sides, held that the Executing Court cannot go behind the decree and that the petitioners had not demonstrated any valid ground for rescission. The petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Execution of Decree - Rescission of Agreement - Order 21 Rule 35, Code of Civil Procedure, 1908 - The petitioners, legal representatives of the judgment debtor, sought rescission of the agreement of sale after a decree for specific performance was passed ex-parte against their predecessor. The Executing Court rejected the application. The High Court held that the Executing Court cannot go behind the decree and that the petitioners had not shown any ground for rescission. The petition was dismissed. (Paras 1-10) B) Specific Performance - Ex-parte Decree - Appeal - Limitation - The petitioners had filed an appeal against the ex-parte decree along with an application for condonation of delay, which was dismissed. The decree attained finality. The High Court noted that the petitioners could not challenge the decree in execution proceedings. (Paras 4-5)
Issue of Consideration
Whether the Executing Court was justified in rejecting the application for rescission of the agreement of sale filed by the legal representatives of the judgment debtor in execution proceedings for a decree of specific performance of contract.
Final Decision
The High Court dismissed the writ petition, upholding the order of the Executing Court rejecting the application for rescission of the agreement of sale.
Law Points
- Specific performance decree
- execution proceedings
- rescission of agreement
- Order 21 Rule 35 CPC
- legal representatives
- ex-parte decree
- limitation
- appeal dismissed
