Applications for rescission of specific performance decrees must be filed in the original suit, not in execution proceedings, as per Section 28 of the Specific Relief Act.

ORDER :

Leave granted.

2. A suit for specific performance of an agreement to sell dated 16.03.2010 was filed in Special Civil Suit No. 217/2010 before the Court of Civil Judge (Senior Division), Latur. The said suit was decreed by judgment and degree dated 16.04.2016. Nevertheless, the said decree was assailed by the plaintiff/appellant who had succeeded in the suit in First Appeal No.3691/2016, which was disposed of by the High Court. Thereafter the execution proceedings were initiated by the appellant herein before the concerned Executing Court. During the pendency of the said proceedings, applications were filed from time to time seeking permission to deposit the balance sale consideration in the very execution proceedings. Four such applications were allowed by the Executing Court. These applications were allowed on 02.02.2021, 08.03.2021, 25.03.2021 and 02.04.2021.

3. In respect of the application filed thereafter by order dated 28.06.2021, notice was issued to the respondent-defendant to file objections on the same. During the pendency of the consideration of the fifth application, seeking permission to deposit the balance consideration amount on 08.07.2021, the respondent-defendant/seller of the suit scheduled property filed an application under Section 28(1) of the Specific Relief Act, 1963 (hereinafter referred to as the “Act” for the sake of convenience) in the execution proceeding. By order dated 30.09.2021, the Executing Court rejected the application filed on 08.07.2021 under Section 28 of the Act and therefore, the plea of rescission of contract was rejected. The payments sought to be tendered vide application Exhibit Nos.15, 16, 18, 21 and 27 were accepted without prejudice to the rights of the judgment debtor(s). The appellant-decree holder was directed to deposit the balance consideration amount, if any, forthwith and the decree holder and judgment debtor(s) were directed to comply with the respective directions as per Order XX Rule 21 of the Code of Civil Procedure, 1908 (‘CPC’, for short).

4. Being aggrieved by the order of the Executing Court dated 30.09.2021, the respondent-judgment debtor herein preferred Writ Petition No.12776 of 2019 before the High Court. By the impugned order dated 15.09.2023, the said Writ Petition was allowed and the order dated 30.09.2021 passed by the Executing Court (3rd Joint Civil Judge, S.D., Latur) in Exhibit Nos.1, 15, 16, 18, 21, 23 and 27, in Special Darkhast No.12/2019 was quashed and set aside. The application(s) filed by the respondent (Exhibit 23) was allowed. The judgment debtor(s) was directed to return the earnest amount paid by the decree-holder within a period of twelve weeks from the date of the said order with simple interest of 6% from the date of payment of the amount till realisation. The balance consideration amount deposited by the decree-holder from time to time before the Executing Court was ordered to be refunded along with accrued interest.

5. Being aggrieved by the order dated 15.09.2023 passed by the High Court, the appellant has preferred this appeal.

6. We have heard learned senior counsel Ms. Meenakshi Arora for the appellant-decree holder and Mr. Vinay Navare, learned senior counsel appearing for the respondents-judgment debtor at length and perused the material on record.

7. The controversy between the parties is in a very narrow compass. The controversy is central to Section 28 of the Act. For immediate reference, Section 28 of the Act is extracted 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 ma