The right to seek rescission of a contract accrues upon the expiry of the stipulated deposit period, not upon receipt of notice in subsequent proceedings, and courts can implicitly extend time through execution orders.

JUDGMENT :

P. Krishna Kumar, J.

The petitioner is the defendant in a suit for specific performance of an agreement for sale of immovable property. The suit was decreed on 21.11.2001, directing the petitioner to execute the sale deed upon the respondent/plaintiff depositing the balance sale consideration of Rs.10,000/- within one month. The respondent, however, failed to deposit the amount within the stipulated period. He deposited the amount belatedly, and got the sale deed executed through the court.

2. Alleging non-compliance with the time stipulation in the decree, and contending that no extension of time had been granted by the Court, the petitioner filed Ext.P4 application seeking rescission of the contract. By the order impugned in this petition, the learned Sub Judge dismissed the application on the ground that it was barred by limitation.

3. Heard Sri. Sunil Nair (Palakkad), learned counsel for the petitioner, and Sri. V.T. Madhavanunni, learned counsel for the respondent.

4. The learned counsel for the petitioner contended that no notice was served on the petitioner in the application filed by the respondent for execution of the sale deed, and therefore, the delay in filing the application for rescission cannot be attributed to the petitioner. Placing reliance on the decisions in V Alias v. Abraham ( AIR 2004 Ker. 344 ), Rajinder Kumar v. Kuldeep Singh ( AIR 2014 SC 1155 ), and Prem Aggarwal v. Mohan Singh ( 2025 KHC OnLine 6860 ), it was argued that, applying the doctrine of actus curiae neminem gravabit, the court ought not to have dismissed the application on the ground of limitation, in the peculiar facts of the case.

5. The learned counsel further placed heavy reliance on the judgment of the Hon’ble Supreme Court in Prem Jeevan v. K.S. Venkata Raman ( AIR 2017 SC 623 ), to contend that the time stipulated in the decree does not stand automatically extended merely because the defendant had not sought rescission of the contract, and thus the decree is not executable.

6. The learned counsel for the respondent, on the other hand, submitted that notice was duly served on the petitioner on I.A. No.2339/2002, which was filed by the respondent seeking execution and registration of the sale deed, and that the petitioner had entered appearance therein. It was contended that the belated application for rescission lacks bona fides. Reliance was placed on Ishwar (Since Deceased) Thr. LRs v. Bhim Singh ( AIR 2024 SC 4232 ) to contend that when the court accepts the balance sale consideration and permits execution of the sale deed, extension of time is implicit in such orders.

7. As regards the first contention, the records disclose that the Munsiff Court had issued notice in I.A. No.2339/2002 to the petitioner-defendant on 11.11.2002, and that the petitioner had entered appearance on 16.12.2002. In such circumstances, the plea founded on the doctrine of actus curiae neminem gravabit is factually untenable.

8. It is also pertinent to note that the decree was passed on 21.11.2001, whereas the application for rescission was filed only on 22.03.2010. In a suit for specific performance, the court does not become functus officio upon passing the decree; rather, such a decree partakes the character of a preliminary decree, and the proceedings are deemed to remain pending. Both parties are entitled to invoke the jurisdiction of the court under Section 28 of the Specific Relief Act, 1963 for rescission of the contract upon the occurrence of contingencies contemplated therein. Therefore, the petitioner was not required to await notice in any application filed by the respondent and could have independent