The court has the power to extend the time for deposit of balance consideration in a decree for specific performance, and the delay in making the deposit does not render the decree unenforceable.

P.V. Narayanan Nambiar, J.

1. The third judgment debtor in an application for enforcement of decree for specific performance of an agreement for sale which was decreed on 22-2-1990 is the revision petitioner. As per the decree, the defendants are directed to execute the sale deed on the plaintiffs depositing the balance consideration within two months from the date of the decree. The plaintiff did not deposit the amount in time. The defendants filed A.S.567/91 challenging the judgment and decree in O.S.No.658/88 of Sub Court, Thrissur. It is stated that there is a stay of execution of the decree pending the appeal. The appeal was dismissed on 4-6-1993. Though the matter was carried further by filing A.F.A.21/94, the same also ended in dismissal on 15-7-1997.

2. The plaintiff filed an execution petition on 20-12-1995 in which he prayed for permitting him to deposit the balance consideration and also praying the court to execute the sale deed. The balance consideration was allowed to be deposited within two months from the date of dismissal of A.F.A.No.21/94. Thereafter, the draft sale deed was approved by the court and the document was executed. The execution petition is posted for delivery.

3. The revision petitioner objected to the execution petition in which he has contended that the plaintiff is not entitled to execute the decree as he did not make the deposit of the balance consideration within the time stipulated by the trial court. This contention was considered by the court below which rejected the same. Hence, the third judgment debtor has come up in revision before this court.

4. It must be remembered that it is a case where the court permitted the plaintiff to make deposit of the balance consideration which he should have deposited within two months of the date of the decree. It is seen that deposit is made within two months from the date of dismissal of A.F.A.21 of 1994. Of course, there was no application filed by the plaintiff for extension of time for making the deposit. But the fact that he was permitted to make the deposit as prayed for in his execution petition itself will indicate that the court has condoned the delay in making the deposit of the balance consideration.

5. It is not the law that only due to the reason that there is some delay in making deposit of the balance consideration as directed by the decree, the decree for specific performance for sale will become unenforceable. The court has got the power to extend the time for deposit which was exercised in favour of the plaintiff. In the circumstances, it cannot be said that the plaintiff was not willing to perform his part of the contract. The recession of the decree is permissible only if it is shown that the plaintiff 'positively refused' to complete the contract. A decree for specific performance is a decree in favour of both the plaintiff and the defendant in the suit, and the same could be executed as per O.21 R.32 CPC. The defendant can also execute the same. The defendant also can move u/s.28 of the Specific Reliefs Act to get the contract rescinded or to take out the execution as per O.21 R.32 CPC. Neither was done by the defendants till the impugned order, though it is stated that after the impugned order they have filed an application on 8-11-1998 for recession of the contract u/s.28(1) of the Specific Reliefs Act.

6. A Division Bench of this court considered a similar question in Joseph George v. Chacko Thomas, 1992 (1) KLT 6, in which it is held that only due to the reason that the plaintiff was late in making the deposit will not enable the court to come to the conclusion that there is failure on his part to perform his part of the contract. This court also held that, in such circumstances, it is not possible to hold that when already a decree for specific performance has been passed, mere failure to deposit the amount should nullify the decree, particularly so since the court can extend the time for deposit u/s.28 of the Specific Relief