( 1 ) THIS is defendant application under Section 28 of the Specific Relief Act, 1963 (hereinafter REFERRED TO to as the Act) for rescinding the contract dated 16 May 1984.

( 2 ) ON the basis of an agreement to sell dated 16 May 1984, (Ex. P-3), purportedly acknowledged by the defendant vide his various letters, on 10 May 1989, the plaintiff filed a Suit (No. 1412/89) for specific performance of the said agreement to sell, against the defendant - his real elder brother in respect of undivided half share of the house property bearing No. E-3, Jangpura Extension, New Delhi.

( 3 ) THE suit was compromised and a consent decree for specific performance of agreement to sell was passed on 9 November 1990, in favour of the plaintiff and against the defendant, directing the defendant to execute the sale deed in respect of undivided half share of the aforenoted property and get it registered in favour of the plaintiff. In terms of the said compromise, the plaintiff was required to pay to the defendant a sum of Rs. 1,35. 600. 00 instead of Rs. 1,15,850. 00 , intially agreed to be paid to the defendant.

( 4 ) ALLEGING that in terms of the agreement to sell dated 16 May 1984, and the compromise decree dated 9 November 1990, the plaintiff had to pay the said amount of Rs. 1,35,600. 00 and have the sale deed executed in three months time but the plaintiff was not ready and willing and infact failed to perform his obligations, that the compromise decree was in the nature of preliminary decree which had become unexcutable due to non performance of this obligations by the plaintiff, the defendant has filed the present application for rescinding the contract.

( 5 ) THE application is opposed by the plaintiff, on the plea that being a consent decree, it could not be challenged. It is denied that; any time limit for performance of the agreement to sell or the compromise decree had been fixed, the decree passed is in the nature of a preliminary decree or that the plaintiff was not ready and willing to perform his obligations under the decree. It is asserted that the plaintiff did offer the sum payable to the defendant but he was put off, for which he had to file an execution petition (Ex. 36/96 ). It is asserted that the defendant has no right to challenge the consent decree and the application be dismissed.

( 6 ) I have heard learned counsel for the parties. The points for consideration are : 1. Whether the application is not maintainable for the reason that ; a) the decree dated 9 November 1990 being a consent decree the defendant has no right to challenge the same. b) no time limit was fixed either in the compromise application or in the decree for payment of a sum of Rs. 1,35,600. 00 by the plaintiff to the defendant and 2) Whether the plaintiff had been ready and willing and did offer to perform his obligation under the compromise and the decree passed? Section 28 of the Act, in sofaras it is relevant for the present application, reads thus :- (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 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 may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescined the contract either so far as regards the party in default or altogether, as the justice of the case may require, (2 ). . . . . . . . . . . . Though on a bare reading of the section it would appear that by its terms it does not apply to a decree where no time limit is fixed or no time is fixed/granted for payment of money, but it is well settled that the principles of the section would apply even to cases in which no time for payment of money has been specifically fixed in the decree. In such a case, a decr