The court retains control over the suit even after the grant of decree of specific performance and can direct rescission of the contract in exercise of the jurisdiction vested in it by virtue of Section 28 of the Specific Relief Act, 1963.

JUDGMENT :

Biswajit Basu, J.

1. The decree holder in a suit for specific performance is the petitioner of the present revisional applications under Article 227 of the Constitution of India. The petitioner filed the suit being Title Suit No. 134 of 2002 for specific performance of an agreement for sale dated December 20, 1999. The First Court of learned Civil Judge (Senior Division) at Barasat, Dist. 24 Parganas (North) by the ex-parte judgment and decree dated February 19, 2008 allowed the said suit by directing the defendant/opposite party to execute the sale deed in favour of the plaintiff/petitioner in respect of the suit property within two months from the date of the decree on receipt of the balance consideration money.

2. The judgment-debtor/opposite party on August 27, 2015 filed an application under Section 28 of the Specific Relief Act, 1963 for rescission of the aforesaid agreement for sale on the ground that the petitioner has failed to comply with the condition of the decree by not paying the balance consideration price within period of two months stipulated under the said decree.

3. The learned Trial Judge by the Order No. 64 dated August 30, 2016 allowed the said application thereby rescinded the said agreement for sale subject to the condition that the opposite party shall refund the earnest money of Rs. 60,000/- to the petitioner with fifteen per cent per annum interest thereon from the date of receipt of the said amount till the date of payment, within three months from the date of the said order and in default the order of rescission of the said agreement for sale has been directed to be vacated and the decree of specific performance has been directed to be restored. The said order is under challenge in C.O. No. 4271 of 2016. Consequent to the rescission of the said agreement for sale the learned Trial Judge by the Order No. 30 dated August 30, 2016 dismissed the application for restoration of the execution case filed by the petitioner holding that the same has become infructuous. The said order is under challenge in CO. 454 of 2017.

4. Mr. Karmakar, learned counsel for the petitioner submits that the decree did not specify the period within which the balance consideration money was required to be paid by the decree holder as such the learned Trial Judge has committed an error in holding that impliedly the said balance consideration price had to be tendered before the expiry of the period of two months, specified in the decree for execution of the deed of conveyance. He placed reliance on the decision of the Hon'ble Supreme Court in the case of KUMAR DHIRENDRA MULLICK AND OTHERS Vs. TIVOLI PARK APARTMENTS (P) LTD. reported in 2005 (9) SCC 262 to give support to his such contention.

5. Mr. Karmakar further submits that the suit was decreed on February 19, 2008 within five months thereafter the decree holder had put the decree into execution and proceed with the said execution case till finalisation of the draft deed of conveyance upon deposit of the balance consideration money as such the facts and circumstances of the present case are more akin to the decision of the Hon'ble Supreme Court reported in 2009 (5) SCC 262 (supra) than the case of CHANDA (DEAD) THROUGH LRS. Vs. RATTNI AND ANOTHER reported in (2007) 14 SCC 26 : AIR 2007 SC 1514. Therefore, according to him the learned Trial Judge is not correct in distinguishing the decision of the Hon'ble Supreme Court reported in 2009 (5) SCC 262 (supra) on facts and in relying on the decision of the Hon'ble Supreme Court reported in (2007) 14 SCC 26 (supra) to hold that the payment of balance consideration money is inbuilt in the direction contained in the decree for execution of the deed of conveyance by the judgment debtor in favour of the decree holder and the failure of the decree holder to comply with the said condition within the said period reflects his negligence and unwillingness to pay be balance consideration money.

6. Mr. Karmakar, taking support of the deci