1. O.S.No.1/1989 before the Additional District Court-I, Mavelikkara was a suit for specific performance filed by the respondent herein as plaintiff. The suit was dismissed. However, in appeal, this Court reversed the decree and granted a money decree for the amount paid as advance by the plaintiff. The matter was carried in appeal to the Apex Court and the Apex Court granted specific performance by a decree dated 20.02.2008 directing the plaintiff to deposit balance sale consideration within a period of three months. An amount of Rs.16,500/- is seen to have been deposited on 05.10.2009 though memo shows that it was deposited on 30.09.2009. On 15.06.2012, I.A.No.491/2012 was filed and there was an order to produce draft sale deed. While that was pending, respondent herein filed three applications namely, I.A.Nos.1028/2012, 1029/2012 and 1030/2012 seeking to accept order dated 03.12.2012 of Apex Court, for issuance of a commission and also to adjudicate the contentions of the respondent regarding certain matters. An application was also filed seeking to ascertain the extent of plaint schedule property available for assignment. That was filed on 19.12.2012. On 20.12.2012, judgment debtor filed I.A.No.1058/2012 under Section 28 of the Specific Relief Act seeking to rescind the contract. The reason given in I.A.No.1058/2012 was that the decree holder had not deposited the amount specified by the Apex Court within the time granted by the Apex Court and even if there was any subsequent deposit, there was no prayer or application for extension of time. Therefore, it was contended that there is nothing to show that decree holder was ready and willing to perform his part of contract.

2. The court below persuaded by the above contentions, allowed I.A.No.1058/2012 and dismissed I.A.No.491/2012 and other three applications filed by the judgment debtor. The said orders are assailed by the decree holder.

3. Sri.R.D.Shenoy, learned Senior Counsel appearing for the petitioners contended that the court below has erred both on facts and in law in allowing I.A.No.1058/2012. True, even though the Apex Court while decreeing the suit for specific performance had granted three months time to deposit the amount, the amount was deposited only on 30.09.2009. But learned counsel contended that the deposit was accepted. Subsequently, I.A.No.491/2012 was filed and there was an order to produce the draft sale deed. It was contended that not only the above facts speak for themselves, but the fact that the judgment debtor had filed three applications mentioned above indicates that they had no objection for the execution of sale deed. Their only grievance was that the extent of property had to be ascertained as there was acquisition proceedings after the agreement. Learned Senior Counsel contended that it is not essential that an application for extension of time must be filed but acceptance of deposit out of time would be deemed to be an extension of time as contemplated under Section 28 of the Specific Relief Act.

4. For the above proposition, learned Senior Counsel for the petitioners relied on the decisions in Chitambaran v. Viswambaran (2000 (2) KLT 128), Joseph George v. Chacko Thomas (1992 (1) KLT 6), Ouseph v. Devassy (2001 (1) KLJ 59) and in Chanda (dead) through Lrs v. Rattni and anr. (AIR 2007 Supreme Court 1514).

5. Learned Senior Counsel appearing for the petitioners went on to point out that no objection was taken by the judgment debtor at the time of deposit and the deposit was accepted without any demur. Apart from the above fact, the conduct of the judgment debtor in filing three applications would further fortify that the deposit was accepted and he was willing to execute sale deed. But, the only contention then was regarding the extent of property available for assignment. It was later that petition for rescission was filed. Learned Senior Counsel points out that it is not the law that a formal application will have to be necessarily