1. The decree-holders/petitioners are aggrieved by order dated 11 -9-2002 passed by Subordinate Judge, III, Patna City in Miscellaneous Case No. 21 of 2000 arising out of Title Execution Case No. 2 of 2000 whereby the decree for specific performance of contract passed in Title Suit No. 113 of 1995 has been rescinded in exercise of power under Sec. 28 of the Specific Relief Act, 1963 (hereinafter referred to as the Act).

2. The factual matrix necessary for disposal of the controversy between the parties is that the plaintiffs/petitioners Hied the aforesaid Title Suit for specific performance of contract on the basis of agreement entered into between the parties for sale of immovable properties as described in Sched-ule-I of the plaint. The said suit was decreed on 20-12-1999 and the decree was signed on 6-1-2000. The Trial Court directed the defendants/opposite parties to execute the sale deed with regard to property described in Schedule-I of the plaint in favour of the decree-holders/petitioners on receipt of balance consideration money of Rs. 1,18,251.00 within one month from the date of judgment i.e. by 19-1-2000 failing which the decree-holders/petitioners will be entitled on deposit of balance consideration amount in the Court to get the sale deed executed and registered by the Court and entitled to get the possession of the suit property through the process of the Court.

3. The case of the plaintiffs/decree-hold-ers/petitioners is that they approached the judgment-debtors/opposite parties within the aforesaid period to accept the balance consideration money and to execute and register the sale deed, but they avoided and hence they filed an Execution Case on 17-2-2000 for execution of the decree on payment of balance consideration money. In the said case on 3-6-2000, a petition was filed by the plaintiffs-decree-holders praying therein to grant permission to deposit the consideration money by challan which was allowed by the Court and in pursuance of that on 9-6-2000 they deposited the balance consideration by challan. Thereafter, the petitioners also submitted the draft of the sale deed on the basis of which a report was called for from the Sirestedar on the said draft and thereafter the draft was approved and as such they performed their part of contract.

4. It is admitted position that during pendency of the suit, the plaintiffs/petitioners have deposited the balance consideration money through the challan draft but the defendants/judgments-debtors/oppo-site parties did not accept the same and ultimately, the draft was withdrawn by the decree-holders/petitioners. Thus, according to the decree-holders, they were willing and ready to perform their contract up to the very beginning to the end but the defendants/judgment-debtors/opposite parties avoided to perform their part of contract and as such no case for rescission of contract was made out under Sec. 28 of the Act.

5. The case of the judgment-debtors/opposite parties on the other hand is that on 8-1-2000 they expressed their desire to the decree-holders/petitioners to perform their part of the contract but the decree holders did not agree to get the sale deed executed on the ground that they have no money. On 13-1-2000, they filed an application in the trial Court expressing their readiness and willingness to perform their part of the contract within the stipulated period. A copy of the said petition was not accepted by the counsel appearing for the decree-holders/ petitioners, then the Court below directed for service of legal notice upon the decree-holders/petitioners and the legal notice was sent on 15-1-2000 which was received by the decree-holders, even then nothing was done within the stipulated period and accordingly a petition was filed to absolve the judgment-debtors from the liability of the contract. On 16-2-2000, the judgment-debtors filed a petition under Sec. 28 of the Act for rescission of the contract as the decree-holders had failed to deposi