The main legal point established is that the court which passed the decree for specific performance retains control over the decree and is the only court entitled to order rescission of the contract.

The petitioner in E.A.No. 331 of 1988 in E.P.No.32 of 1982 in O.S.No. 98 of 1978 (defendant in the suit), Sub Court, Ottapalam, is the revision petitioner. The respondent herein is the respondent in E.A.No.331 of 1988 (decree holder-plaintiff in the suit). The defendant-revision petitioner filed E. A.No.331 of 1988 before the Sub Court, Ottapalam under S.28 of the Specific Relief Act, 1963 to rescind the contract dated 16-1-1976. The court below dismissed the petition, by orders dated 28-2-1990. The petitioner in the court below (defendant in the suit) has come up in revision.

2. I heard counsel for the revision petitioner, Mr. V.R. Venkatakrishnan, and also counsel for the respondent, Mr. V.P. Mohankumar and Mr. Gopikrishnan.

3. A few facts are necessary to resolve the controversy in this case. The revision petitioner-defendant had entered into an agreement with the respondent-plaintiff on 16-1-1976, ExtAl, to sell immovable property. The respondent filed O.S.No.98 of 1978 for specific performance of the contract The trial court (Sub Court, Ottapalam) dismissed the suit. In appeal by the respondent as A.S.No. 213 of 1979, the District Court, Palakkad decreed the suit and ordered specific performance 'by judgment dated 27-1-1982. The plaintiff was given time of one month (till 27-2-1982) to deposit the entire amount. The plaintiff deposited the amount only on 10-3-1982. The defendant filed S.A.No.527 of 1982-D before this Court on 23-5-1982. The second appeal was dismissed on 5-1-1988. The plaintiff initiated proceedings in execution and filed E.P.No. 32 of 1982. The defendant-revision petitioner filed E.A.No.331 of 1988 and pleaded for rescission of the contract. It was stated that, as per the terms of the decree in A.S.No.213 of 1979, which was affirmed in S.A.No.527 of 1982, the respondent ought to have deposited the balance amount due to the defendant on or before 27-2-1982 and it was not so done Since there was non-compliance by the defendant-respondent, the petitioner is entitled to rescind the contract, under S.28 of the Specific Relief Act, 1963.

4. The respondent herein, the plaintiff, opposed the application. He contended that the application cannot be entertained by the execution court. He also contended that the defendant is not entitled to the relief under S.28 of the Specific Relief Act, since the deposit should be held to have been made within time; it was made long before the dismissal of the second appeal on 5-1-1988, which is the effective decree in the case. Deposit was made on 10-3-1982.

5. The court below held that the appeal and the execution are continuation of the suit and so there is no merit in the plea that the application filed under S.28 of the Specific Relief Act in the execution court is not maintainable. The court below also held that the decree passed in A.S.No.213 of 1979 merged in the decree passed by this Court in S.A.No.527 of 1982 and so, the period allowed for payment of purchase money should be calculated from the date of the final appellate decree. It was further held that when a decree passed by the lower court is taken in appeal and the appellate court decides the matter, the decree of the appellate court must be taken to have incorporated the terms of the decree of the court of first instance and the period allowed for payment of purchase money should be calculated from the date of appellate decree. It was held that whenever there is an appeal, the decree of the court of first instance merges in the appellate decree. In this view, it was held that the respondent-plaintiff need deposit the sum only after one month from the date of disposal of the second appeal. Since the deposit was made long before that date, as early as 10-3-1982, it was in time and the revision petitioner cannot put forward the plea that he is entitled to rescind the contract. It is from the aforesaid order passed by the court below in E. A.No.331 of 1988 dated 28-2-1990, the petitioner in' the court below