IMPORTANT POINT
The court emphasized the discretionary power under section 28 of the Specific Relief Act, highlighting the court's authority to extend the time for deposit and the unfettered nature of the power under Article 227 of the Constitution of India.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Order dated 4th April, 2017 passed by the learned 4th Court of Civil Judge (Senior Division), Alipore in the Misc. Case No. 6274 of 2012 (Arising out Title Suit No. 102 of 1983) has been assailed in the present application.

2. The predecessor-in-interest of the opposite party herein namely Promotho Ranjan Shome became a tenant in respect of the 2nd floor flat since the year 1943 under one Charu Chandra Sinha and after his death his son Jyotish Chandra Sinha became owner of the suit premises. Said Jyotish Chandra Sinha entered into a registered agreement for lease for a period of 99 years with effect from 01.01.1978. As per stipulation of said deed aforesaid Promotho Ranjan (since deceased) would be entitled to purchase the property within five years from the date of entering into the said lease for a total value of Rs. 60,000/- and said lease was executed on 26.12.1977. As par lease deed on payment of the aforesaid amount, the lessee shall be deemed to be full owner of the suit premises and lessor shall be bound to execute necessary deed of conveyance at the agreed purchase price.

3. It is alleged by the opposite party herein that Jyotish having refused to execute the deed in terms of lease, aforesaid Promotho filed Title Suit, being no. 102 of 1983. Upon contested hearing the suit was decreed in favour of plaintiff on 14.12.1987. While passing the judgment, Trial Court directed the plaintiff to deposit the residual consideration amount within a period of one month and the judgment debtor to execute the deed of conveyance in favour of the decree holder. The decree was drawn on 14.01.1988.

4. Being aggrieved by the judgment and decree dated 14.12.1987 passed in aforesaid Title Suit no. 102 of 1983, said Jyotish preferred an appeal before the High Court which was registered as F.A. No. 198 of 1990. Thereafter the appeal was dismissed as withdrawn on 29.06.2007 and as such thereafter there was no stay of operation of the judgment and decree and accordingly execution application was filed by plaintiff/decree holder on 26.08.2007, being Title Execution No. 78 of 2007, (renumbered as T. Ex. 13 of 2007) seeking for execution and registration of the deed of conveyance through court process.

5. It has been contended that stay granted by this Appellate Court in respect of said suit, continued till 29.06.2007. Admako Seasons Pvt. Ltd. (hereinafter called as Admako Company) filed an application under section 28 of the Specific Relief Act 1963 (hereinafter called as Act of 1963). Be it mentioned that said Admako Company claimed to have become sole owner in respect of the suit property by purchase on 14.01.1995. This High Court accordingly allowed the said company to be made party to the Appeal during pendency of the Appeal. Said application filed under section 28 was rejected by the court below by the impugned order dated 04.04.2017.

6. Mr. Mukherjee, learned counsel appearing on behalf of opposite party, before making submission on merit raised a preliminary objection contending that by the order impugned learned court below has disposed of the Misc. Case in connection with application under section 28 of the Act of 1963, which amounts to final disposal of the said Misc. Case and as such judgment debtors only remedy is to prefer Misc. Appeal and not the present Application under Article 227 of the Constitution of India.

7. Supporting impugned order, Mr. Mukherjee strenuously argued that within the meaning of section 28 (1) of the Act of 1963 the court below has the authority to extend time for deposit of money, even belatedly and that too without a formal application. It is perfectly open to the court below who is in control of the suit to extend time for deposit of purchase money. Accordingly by the impugned order the court below has been pleased to grant extension of time and further held that, decree holder has paid the residual amount in court and as such question of recession of agreement of contract ca