1. Can a decree for specific performance of a contract for sale of an immovable property be rescinded under Section 28 of the Specific Relief Act?

2. The defendant in O.S.No.5 of 2002 on the file of the Subordinate Judge's Court, Thodupuzha against whom a decree for specific performance of a contract for sale of the scheduled immovable property was passed, unsuccessfully challenged the said judgment and decree in appeal as A.S.No.205/04 before the District Court, Thodupuzha. The Additional District Judge dismissed the appeal through the impugned judgment and decree dated 28.02.2007. The respondent/defendant has come up in second appeal.

3. During the pendency of this RSA, the appellant had approached the trial court with I.A.No.975/12 in O.S.No.5/02, purportedly one under Section 28 of the Specific Relief Act, seeking rescission of the decree dated 25.05.2004 in O.S.No.5/02 on the ground that the plaintiff had failed to pay or deposit the balance sale consideration within time. The trial court dismissed the said IA, on which the present O.P.(C) No.4457/12 has been filed.

4. The factual matrix reveals the following: The plaintiff has alleged that on 19.10.2001 the defendant had entered into Ext.A1 agreement for sale with him thereby agreeing to sell 43 cents of property for a total consideration of Rs.1,50,000/-. At the time of execution of Ext.A1, an amount of Rs.10,000/- was obtained by the defendant from the plaintiff as part of consideration. The date of execution of the sale deed was fixed to be on or before 19.01.2002. As the plaintiff felt that the defendant was avoiding the execution of the sale deed, he caused to issue a lawyer's notice dated 03.01.2002 to the defendant thereby calling upon him to be present at the Sub-registrar's office on 13.01.2002 for the execution of the sale deed. The defendant has not turned up, and hence the suit.

5. The defendant contended that Ext.A1 was not executed as an agreement for sale, whereas, it was executed by way of a loan agreement as the defendant was in dire necessity to borrow an amount of Rs.10,000/- from the plaintiff for meeting the expenses for the marriage of his daughter. As Ext.A1 was not executed for the sale of the only immovable property belonging to the defendant, the plaintiff is not entitled to get a decree for specific performance of the contract. It was also contended that the defendant is ready and willing to return the amount borrowed with interest at the rate of 18% per annum.

6. The trial court decreed the suit on 25.05.2004 against which A.S.No.205/04 was filed. The appeal was also dismissed on 28.02.2007. Therefore, the plaintiff filed an application on 12.09.2007 for permitting him to deposit the sale consideration and to get the sale deed executed through court. The said application was allowed on 28.05.2008. Another application was filed by the plaintiff on 17.07.2008 for the approval of the draft sale deed. The said application was dismissed for default on 20.12.2010. An application for restoration was filed; the same was allowed and consequently the earlier application was restored. On 12.12.2011 the plaintiff filed an application seeking leave to deposit the balance consideration before the trial court. Thereafter, the said application was not pressed through memo dated 03.10.2012. After that, the defendant filed I.A.No.975/12 purportedly one under Section 28 of the Specific Relief Act before the trial court to get the decree rescinded. The same was dismissed. Ultimately, the plaintiff deposited the balance sale consideration before the trial court on 06.10.2012.

7. Heard the learned counsel Sri.Philip T. Varghese for the appellant in R.S.A.1276/08 who is the petitioner in OP(C)4457/12 and Sri.T.J. Michael for the respondent in RSA 1276/08 and the respondent in OP(C) 4457/12. The learned counsel for the appellant has argued that the plaintiff ought to have deposited the balance sale consideration within one month from the date of decree, as per