IMPORTANT POINT
The power under Section 28 of the Specific Relief Act is discretionary and the Court cannot ordinarily annual the decree once passed by it.

Headnote:Specific Relief Act, 1963—Section 28—Rescission of contract for sale of immovable property—Non deposit of balance amount by purchaser, decree holder—Powers of Court to grant extension of time to make deposit—Defendants respondents entered into an agreement to sell land to plaintiff appellant—Suit for specific performance filed by plaintiff appellant as defendants did not execute sale deed within the time specified in the agreement—Suit decreed ex-parte and decree has become final between parties—Plaintiff appellant did not deposit the balance sale price within two months from the date of decree and defendants respondents did not execute the sale deed—Plaintiff filed application for execution of decree pleading that since the judgment debtors had failed to execute the sale deed, he be allowed to deposit balance sale price in court—Judgment debtor filed an application u/s 28 of the Act with a prayer that the agreement to sell be rescinded since the purchaser had failed to deposit sale consideration within time allowed by Court—Whether Courts below were justified in rescinding the original contract for plaintiff’s failure to deposit the balance sale consideration—(Yes).
       Held : Under the present provision where the purchaser or lessee has paid the money, he is entitled in the suit for specific performance to the reliefs as indicated in sub-section (3) like, partition, possession etc. A suit for specific performance does not come to an end on passing of a decree and the Court which has passed the decree for specific performance retains the control over the decree even after the decree has been passed.(Para 8)
       The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the Court cannot ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. The Court does not cease to have the power to extend the time even though the trial Court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit to stand dismissed. The power exercisable under this Section is discretionary.(Para 9)

JUDGMENT

Dr. Arijit Pasayat, J.—Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court dismissing the revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (in short the ‘Code’).

2. Background facts as projected by the plaintiff in a nutshell are as follows:

Defendants-respondents entered into an agreement dated 25.3.1989 to sell land measuring 54 Kanals 3 Marlas to the original plaintiff-Chandu and received Rs.56,000/- as earnest money. The sale deed was to be executed on or before 15.6.1989 on payment of the balance sale consideration of Rs.1,39,000/-. Since the defendants did not execute the sale deed within the time specified in the agreement, the plaintiff-appellant instituted a suit on 24.1.1990 for specific performance of the agreement to sell. The suit was decreed ex parte on 1.5.1992 and it is common case of the parties that the decree has become final between them. Para 6 of the judgment of the trial court decreeing the suit reads as under:-

“For the reasons discussed above, the suit succeeds. A decree for possession of the suit land by way of specific performance is hereby passed in favour of the plaintiff and against the defendants with costs. Defendants are directed to execute the proposed sale deed on payment of the balance sale price of Rs.1,39,000/- and get it registered within a period of two months from the date of this decree failing which the plaintiff shall be at liberty to get the sale deed executed and registered under Order 21 Rule 12 Code. Decree be drawn up accordingly and file be consigned to the record room.”

3. The plaintiff did not deposit the balance sale price within two months from the date of the decree, and the defendants did not execute the sale deed. Plaintiff then moved an application on 10.10.1992 for the execution of the decree pleading therein that since the judgment debtors-respondents had failed to execute the sale deed the same was to be executed through court and that he (plaintiff) be allowed to deposit the balance sale price in court. During the pendency of this application, one Sarup Singh through his general attorney moved an application for being impleaded as a party in the execution proceedings on the plea that he was the owner in possession of the suit land on the basis of a decree dated 26.7.1991 which the defendants are alleged to have suffered in his favour. The executing court as per its order dated 14.8.1995 allowed the applicant to be impleaded in the execution proceedings. Sarup Singh then filed objections to the execution application which were dismissed as per order dated 10.9.1998 and it was held that he was not a bona fide purchaser of the suit land. On 8.9.1998, the judgment debtors-respondents moved an application under Section 28 of the Specific Relief Act, 1963 (for short the ‘Act’) with a prayer that the agreement to sell dated 25.3.1989 be rescinded since the plaintiff-appellant had failed to deposit the balance sale consideration within the time allowed by the court. This application was contested by the appellant-plaintiff and on a consideration of the contentions advanced by the counsel for the parties the trial court as per its order dated 15.9.1998 allowed the application and rescinded the original contract dated 25.3.1989 holding that the plaintiff had failed to deposit the balance sale consideration within the time allowed by the Court. The execution application filed by the plaintiff-appellant was consequently dismissed. The said order was assailed in the revision petition filed before the High Court.

4. Before the High Court the stand of the appellant was that the order of the Trial Court was not sustainable as the court while decreeing the suit for specific performance had directed the defendants-respondents to execute the sale deed within two months from the date of decree and since they failed to do so the plaintiff was entitled to have the sale deed executed through

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2007 Supreme(SC) 410

IMPORTANT POINTThe power under Section 28 of the Specific Relief Act is discretionary and the Court cannot ordinarily annual the decree once passed by it.

Cases Referred (1)

IMPORTANT POINT
The power under Section 28 of the Specific Relief Act is discretionary and the Court cannot ordinarily annual the decree once passed by it.