Applications for rescission of contracts must be made in the same suit where the decree was issued, not in execution proceedings.

JUDGMENT :

Madan Gopal Vyas, J.

S.B. Civil Revision Petition No. 90/2017

The present Civil Revision Petition under section 115 of the CPC has been preferred by the petitioner-judgment debtor against the order dated 01.04.2017 passed by the learned Additional District Judge No. 1, Hanumangarh (hereinafter referred to as the learned Appellate Court) in Civil Misc. Appeal No. 24/2016, whereby the learned Appellate Court rejected the appeal. The order dated 31.08.2016 passed by the learned Additional Senior Civil Judge, Hanumangarh (hereinafter referred to as the learned Executing/trial Court), whereby the learned Executing Court rejected the application filed by the petitioner under section 28 of the Specific Relief Act in Civil Misc. Case No. 06/2011.

2. Brief facts of the case are that the plaintiff-decree holder preferred a suit seeking decree of specific performance of agreement to sale dated 25.02.1988. The learned trial Court vide judgment and decree dated 07.08.1998 decreed the suit in the following manner:-

^^vkns'k gS fd oknh v:.k dqekj iq= cyjke f[kysjh tkfr tkV fuoklh Qrsgxढ+ rglhy guqekuxढ+ dk ;g okn fo:} izfroknh lqHkk"k pUnz ckcr fofufnZ"V ikyuk foØ; vuqca/k fnukad 25-2-88 Hkwfe okds pd 4 vkj vkj MCY;w ds i0u0 125@238 ds fdyk ua0 8] 13 o 18 dk fMØh fd;k tkrk gSA izfroknh dks ;g Hkh vkns'k fn;k tkrk gS fd og d`f”k Hkwfe ds lEca/k esa oknh ls 'ks"k izfrQy ,oa foØ; foys[k dk [kpkZ izkIr dj ,oa 'ks"k vkSipkfjdrk;sa iw.kZ djokdj mlds gd esa foØ; foys[k dk fu"iknu ,oa itahdj.k djkosa vkSj blds fy;s rhu ekg dk le; fn;k tkrk gSA vkns'k dh izfroknh }kjk ikyuk ugha djus ij U;k;ky; dks ekQZr oknh ds gd esa mDr.k Hkwfe dks jftLVzjh djk;s tkus dk vkns'k fn;k tkrk gSA oknh okn [kpkZ Hkh izfroknh ls izkIr djus dk vf/kdkjh gksxkA

rnuqlkj fMØh ipkZ tkjh gksA

3. On 26.04.2003, the respondent-decree holder preferred an execution petition before the learned Executing Court and the learned Executing Court while issuing notices of the execution petition upon the petitioner permitted to accept challan for depositing the balance consideration as submitted by the respondent-decree holder vide order dated 26.09.2008. Thereafter, on 04.08.2011, the present petitioner filed an application under section 28 of the Specific Relief Act stating therein that there is a gross delay in depositing the balance amount of consideration and remaining part of payment has not been paid yet since last 19 years. Further, it is submitted that the readiness and willingness of the respondent-decree holder was not in continuous, as he failed to comply with the directions issued by the learned Executing Court and there was no application for condonation of delay for doing the requisites. Accordingly, the petitioner prayed for rescission of the decree passed by the learned trial Court.

4. The respondent-decree holder submitted reply to the application under section 28 of the Specific Relief Act denying the averments made in the application. It was submitted that the respondent-decree holder was ready and willing to comply with the directions issued by the learned trial Court, but it is the petitioner, who was using delaying tactics and therefore, the respondent-decree holder was left with no other option, but to prefer the execution petition. Further, it is submitted that the application under section 28 of the Specific Relief Act is not maintainable in the execution proceedings, therefore, it was submitted that the same may be rejected.

5. On 31.08.2016, the application under section 28 of the Specific Relief Act came up for consideration before the learned Executing Court and the learned Executing Court rejected the same. The appeal preferred against the order dated 31.08.2016 also came to be rejected vide order dated 01.04.2017 by the learned Appellate Court, hence, the present Revision Petition.

6. Learned counsel appearing for the petitioner vehemently submitted that the learned Executing Court has committed manifest perversity while passing the impugned order dated 31