Petition for rescinding the contract allowed in revision.Application for rescinding the contract allowed.

Srinivasan, J.

1. This revision petition is filed by the legal representative of the defendant in the suit O.S. No. 1798 of 1974 on the file of the Fifth Assistant Judge, City Civil Court, Madras against an order dismissing an application under section 28 of the Specific Relief Act, to rescind the contract. The suit was filed by the respondent, herein for specific performance of an agreement dated 29.11.1973. Under the agreement the consideration agreed was Rs. 12,300, out of which a sum of Rs. 500 was paid in advance. It was agreed that the respondent should discharge the mortgage over the property executed by the vendor, the father of the present petitioner. It was further agreed that the transaction should be completed within three months from the date of the agreement and that after discharging the mortgage and paying certain taxes, the balance should be paid before the Sub Registrar at the time of registration of the sale deed.

2. The respondent averred in the suit that in spite of her notice before the suit, the defendant was not willing to perform his part of the contract and consequently the filing of the suit was necessitated.

3. The trial Court held that the respondent was ready and willing to do her part of the contract and, she was entitled to a decree for specific performance.

4. With regard to the payment of the balance of sale price, the trial Court took note of the fact that under the agreement the plaintiff was to discharge the mortgage debt and pay the arrears of tax and pay the balance only before the Sub Registrar at the time of registration of the document. Hence, the trial Court did not think it necessary or proper to give a direction to the plaintiff to deposit the balance of sale price into Court. Consequently a decree was passed by the trial Court, directing the defendant to execute a sale deed in favour of the plaintiff as per the agreement dated 29-11-1973 for Rs. 12,300. The decree contained a clause that if the defendant failed to execute the sale deed, the plaintiff was at liberty to take out necessary steps to have the deed executed by the Court.

5. The decree was passed on 8-3-1976. The plaintiff filed a petition for execution of the decree on 29-1-1979. The defendant died on 28-2-1978 before service of notice in the execution proceedings. The plaintiff filed a petition to bring the legal representatives on record and the petitioner herein and his sister, who died later, were brought on record as legal representatives. The petitioner had filed a counter affidavit, contesting the execution proceedings. On 28-11-1980 the executing Court passed an order in the following terms:

Enquiry and deposit of amount by 20-12. The matter was posted to 20-12-1980. It is not in dispute that the respondent deposited a sum of Rs. 11,800 on 18-12-1980 into Court within the time specified. The said amount was calculated by deducting the sum of Rs. 500 paid by way of advance at the time of the agreement from the total consideration of Rs. 12,300.

6. The execution petition was dismissed on 14-12-1981 on the ground that the relief was sought in the execution proceedings against the dead person and, therefore, it was not maintainable. The executing Court made an observation that the decree holder had not deposited the sale price into Court or disclosed her willingness. Obviously the deposit made on 18-12-1980 was not taken into account by the executing Court. However, the respondent filed C.M.P.No. 3754 of 1981 in this Court against the order dated 14-12-1981 and it was allowed on 25-8-1982. The execution proceedings were remanded to the executing Court with a direction to dispose of the same in accordance with law. That execution proceeding is stated to be still pending.

7. The petitioner herein filed I.A.No. 15777 of 1986 in the trial Court under Section 28 of the Specific Relief Act for rescinding the contract. That application was dismissed by the trial Court. It is against the said order of dismissal that the present