Point of Law : Provisions of section 28(1) of the Specific Relief Act, 1963 in light of the provisions of Order XX Rule, 12A of the CPC, and it was held that the provisions of Order XX, Rule 12A mandates that in the decree for specific performance of sale ordering payment of purchase money by the purchaser, a specific period for payment must be made. It was further held that non-mentioning of a specific time period to complete the part of the plaintiff-purchaser for specific performance of contract shall hit the provision stipulated under section 28 of the Specific Relief Act.

JUDGMENT :

Kalyan Rai Surana, J.

1. Heard Mr. S. Sahu, learned counsel for the petitioners and Mr. T. Das, learned counsel for the respondent.

2. By filing this application under Article 227 of the Constitution of India, the petitioners have assailed the legality and validity of the order dated 21.07.2017, passed by the learned Civil Judge, Sonitpur, Tezpur in T.S. No. 22/2005.

3. The respondent is the plaintiff in T.S. No. 22/2015, which was filed for specific performance of contract for the sale of the suit property. The said suit was partly decreed vide judgment and decree dated 30.06.2008, thereby allowing refund of the consideration money of Rs. 1,75,000/- (Rupees one lakh seventy five thousand only), but was denied specific performance of contract to obtain sale deed of the suit land. The aggrieved petitioners had preferred an appeal, which was registered as T.A. No. 2/2008. The said appeal was allowed vide judgment and decree dated 30.09.2011, passed by the learned District Judge, Tezpur, thereby setting aside the decree passed by the learned trial Court. The relevant part of the said order is extracted herein below:-

"8. Therefore, the appellant is entitled the relief for specific performance of contract to get register Sale Deed of suit land and house as prayed for. Hence the Respondent is to do all needful to execute Sale Deed after receiving the balance consideration money. As the Appellant's plea of payment of cash amount of Rs. 20,950/- is not proved she is to pay balance amount of consideration money of Rs. 50,000/-, preferably within a period of 30 days from the date of decree. If the Respondent do not execute the Sale Deed and register it or do not receive the balance amount of consideration money of Rs. 50,000/-, the Appellant may approach the Court to get execute the Sale Deed in her favour after depositing the balance amount."

4. The respondent had filed an execution petition on 17.09.2012 to enforce the appellate decree, which was registered before the Court of Civil Judge, Sonitpur, Tezpur as T. Ex. Case No. 1/2012. Objecting to the execution, the petitioners had filed a petition under section 47 CPC, which was registered as Misc. (J) Case No. 28/2016, wherein it was averred that as per the appellate judgment, the petitioners were directed to do the needful to execute the sale deed after receiving the balance consideration money of Rs. 50,000/- within thirty days from the date of decree, and it if the petitioners do not execute the sale deed of registered deed or do not receive the balance amount of Rs. 50,000/-, the respondent may approach the Court to get the sale deed registered after depositing the balance amount. The respondent filed a written objection to the said petition on 23.06.2016 executing Court, by order dated 28.02.2017, made reference to the provisions of section 28(1) of the Specific Relief Act, and by relying on the case of Ramankutty Vs. Avara, : AIR 1994 SC 1699, deemed it appropriate to hear the said petition on original side as an interlocutory application and not in execution proceeding. Thereafter, upon hearing the learned counsel for the parties, by the impugned order dated 21.07.2017, concluded that the appellate Court had directed that the balance consideration of Rs. 50,000/- should be 'preferably' paid within 30 days, which according to the learned trial Court, implied that the claim of the petitioners that the decree is conditional is incorrect and the word 'preferably' only asks the respondent to make payment within 30 days, if possible, however, the Court had determined no clear fixed period of deposit and by referring to the case of Prem Jivan Vs. K.S. Venkata Raman & Anr., the term 'preferably' was read as directional and not optional. However, by referring the ratio laid down in the case of Chanda Vs. Rattni : (2007) 14 SCC 26, took a view that Court cannot ordinary annul the decree once passed by it and that the Court does not cease the power to extend time. Accordingly, it