Point of law : Courts would be slow to unilaterally interfere in, modify, substitute or modulate terms of a consent decree, unless it is done with consent of all parties thereto.

ORDER :

Revision petitioner is plaintiff in O.S.No.107 of 2010 on files of Subordinate Judge’s Court, Payyannur. suit was filed for a decree of specific performance directing respondent to execute sale deed in terms of agreement dated 22.8.2008. During pendency of suit, parties arrived at a settlement and lower court rendered judgment and decree in terms of settlement. As per terms of compromise decree, sale consideration was fixed at Rs.70 lakhs, out of which Rs.5 lakhs had already been paid to defendant. balance sale consideration was to be paid off by depositing Rs.25 lakhs in defendant's account on or before 30.1.2018 and Rs.40 lakhs, on or before 31.3.2018. Thereupon, sale deed was to be registered in plaintiff’s favour. It was also stipulated that on failure of plaintiff to deposit balance amount, defendant could adjust advance amount of Rs.5 lakhs towards loss sustained by him and plaintiff's right to get back amount will stand forfeited.

2. petitioner failed to pay amount of Rs.65 lakhs towards balance sale consideration within time. Instead, he caused a lawyer notice dated 28.4.2018 to be issued, requiring defendants to hand over original documents of property for raising funds. defendants issued reply notice on 9.5.2018 stating that handing over of original documents was not part of agreement and that plaintiff had already breached terms of agreement. Thereafter, petitioner filed I.A.No. 499 of 2018 under Section 28(1) of Specific Relief Act, 1963 seeking extension of time for paying balance sale consideration. respondent opposed prayer for extension, contending that court having rendered a compromise decree, extension of time at instance of one party will amount to varying of decree unilaterally. By impugned order, court below dismissed application for extension, holding that a compromise decree is passed based on agreement between parties and terms of said agreement cannot be varied without consent of both parties.

3. Heard Sri.Satheesan Alakkadan, learned counsel for petitioner and Sri.Kaleeswaram Raj, learned counsel for respondent.

4. Learned counsel for petitioner assailed finding in impugned order contending that contract between parties does not get extinguished by court passing decree for specific performance. Such a decree being preliminary in nature, suit is deemed to be pending even after decree. Relying on decision in Smt.Periyakkal and Others v. Smt.Dhakshyani [AIR 1983 SC 428], it is contended that agreement between parties gets merged with order of court and hence court’s freedom to act in furtherance of ends of justice is not curtailed by compromise. decision of Apex Court in Kumar Dhirendra Mullick and others v. Tivoli Park Apartments (P) Ltd. [(2005) 9 SCC 262] is cited to contend that while exercising power under Section 28(1) of Specific Relief Act, court does not become functus officio after granting decree for specific performance.

5. Learned counsel for respondent drew attention to stipulation in agreement that, failure to deposit balance sale consideration would result in advance sale consideration of Rs.5 lakhs received by respondent being adjusted towards loss sustained by him and petitioner not being entitled to get back amount. It is argued that in light of said self working stipulation, petitioner is not entitled for extension of time. Support for proposition is sought to be garnered from decision of Apex Court in Gupta Steel Industries v. Jolly Steel Industries Pvt.Ltd and another [(1996) 11 SCC 678] and of this Court in Kappothoora Chandran and others v. N.Mustafa [(2011) 3 KLT 245].

6. Section 28 of Specific Relief Act provides for rescission of contract in certain circumstances, specific performance of which has been decreed. Sub-section (1) of Section 28, which is contextually relevant, reads as under;

“28. Rescission in certain circumstances of contracts for sale or lease of immovable property,