The main legal point established is that an application for rescission of a contract must be filed within the period of limitation and must be sustainable on merits to be maintainable under Section 28 of the Specific Relief Act.

Therasitta Santhi, the respondent herein filed the suit for specific performance against the petitioner herein on the basis of the sale agreement dated 21-2-1995. The petitioner did not choose to appear before the Court. So, the suit was decreed ex-parte. Time was granted for payment of the balance sale consideration. Since the petitioner did not agree to receive the amount, the respondent filed execution petition in E.P.No.72 of 1999 after depositing the balance sale consideration. The petitioner filed an application in E.A.No.274 of 2002 in E.P.No.72 of 1999 under Section 28 of the Specific Relief Act, praying for rescission of the agreement dated 21-2-1995. This was contested by the respondent on the ground that the application was barred by limitation and the decree did not specify the period for payment of balance sale consideration. Endorsing this objection, the application filed in E.A.No.274 of 2002 was dismissed by the executing Court. Hence, this civil revision petition.

2. Relevant facts essential to decide the issue, are as follows:-

(a) On 21-2-1995, the petitioner executed an agreement of sale in favour of the respondent for a total sale consideration of Rs.7,95,000/- and on the very same day, the respondent paid an advance of Rs.2 lakhs. Even though the respondent was ready and willing to perform her part of the contract, the petitioner failed to perform his part of the contract. Hence, the respondent herein filed the suit in O.S.No.146 of 1998 seeking for specific performance of the agreement.

(b) Since the petitioner refused to receive the summons, substituted service was effected. The matter was posted on 29-6-1998. On that day, the petitioner/defendant failed to appear and therefore, he was set ex-parte and the suit was decreed on 29-6-1998.

(c) By the said decree, the petitioner/defendant was directed to receive the balance sale consideration of Rs.5,95,600/- on or before 29-7-1998 and to execute the sale deed. After the decree, the respondent herein approached the petitioner with the balance sale consideration and in spite of repeated offers made by the respondent, the petitioner herein deliberately refused to accept the same. Under those circumstances, the respondent herein filed execution petition in E.P.No.72 of 1999. After obtaining necessary lodgement schedule from the Court, the respondent herein deposited the entire balance sale consideration of Rs.5,95,600/- on 28-9-1999.

(d) Notice in the execution petition was served on the petitioner herein on 12-10-1999. The petitioner thereafter filed E.A.No.274 of 2002, seeking for dismissal of the execution petition on the ground that the respondent herein had not complied with the terms of the decree by not paying the balance sale consideration of Rs.5,95,600/- within the time stipulated in the decree, i.e. on 29-7-1998, and therefore, the petitioner herein is entitled to rescind the agreement dated 21-2-1995 under Section 28 of the Specific Relief Act.

(e) The said E.A. was contested, as noted above, by the respondent herein on the ground that the application was barred by limitation and no period was specified for payment of the sale consideration and in any event, the sale consideration was deposited in time. By order dated 11-6-2003, the lower Court dismissed the E.A., accepting the contention urged on behalf of the respondent.

3. Impugned order dated 11-6-2003 is challenged before this Court by the counsel for the petitioner herein, contending that no valid reason has been given to dismiss the application in E.A.No.274 of 2002 and that the lower Court failed to consider the fact that the respondent herein deliberately failed to deposit the balance sale consideration within the reasonable time. Therefore, the Court below ought to have rescinded the agreement executed between the parties herein.

4. To substantiate his plea, learned counsel for the petitioner would cite the decision of the Supreme Court reported in 2002 (3) C.T.C. 111 (Lalit Kumar