This is a petition to revise the order of the learned Subordinate Judge of Vellore, in I.A. No. 784 of 1966 in O.S. No. 134 of 1965. This revision petition arises out of a suit for specific performance. Defendants 1 and 2 in the suit are the petitioners. The plaintiff filed a suit for specific performance of a contract to reconvey certain properties, which had been sold on 5th September, 1969 by him and two others to defendants 1 and 2. The claim against the third defendant a purchaser from defendants 1 and 2 of one of the items was given up. Defendants 1 and 2 submitted to a decree and therefore, the decree provided that they should execute a sale-deed and that in the event of default the plaintiff was to have the sale-deed executed by the Court and registered. Unfortunately, the decree did not provide the period within which the plaintiff was to pay the consideration for the sale-deed. The decree was on 27th June, 1966. The plaintiff did not either pay the amount to the defendants or deposit it into Court. Therefore, on 6th December, 1966 on behalf of the defendants, a notice was sent to the plaintiff stating that the money had not been paid to them nor the draft sale-deed submitted for their approval, and, enquiring whether the plaintiff had deposited the said amount to the credit of the defendants. Having received no reply to this notice, the defendants filed on 14th December, 1966 I.A. No. 784 of 1966, put of which the present revision petition arises, under section 28 of the Specific Relief Act, 1963, for rescinding the contract and dismissing the suit. The plaintiff filed a counter saying that he had always been ready and willing and even now ready and willing to perform his part of the contract and pay the purchase-money and take a reconveyance. Even then the amount was not deposited. The interlocutory application was ordered on 7th March, 1967 giving 30 days time to deposit the amount and the amount has been deposited within 30 days provided in the order of the Court. The contention on behalf of the petitioners is that the Court below was not justified in granting time to the plaintiff and that in any case the Court could have dismissed their application, but should not have given anytime to the plaintiff on the application made by them (defendants).

The facts which I have already mentioned would show that whatever might have been the position before the date of the consent decree the plaintiff does not seem to have been ready and willing to deposit the amount necessary for getting the reconveyance. The decree was as early as June, 1966. Till December, 1966, he did nothing. Even after he received the notice, he did not send a reply offering to pay the amount to the defendants. Even after the defendants had filed a petition under section 29 of the Act, the plaintiff did not deposit the amount, nor did he deposit the amount till March, 1967, when the lower Court made its order, giving him a further time of 30 days. It is, thus obvious that the plaintiff has not been, ready and willing to deposit the amount due to the defendants.

In Gomathinayagam Pillai v. Palaniswami Nadar1, it has been pointed out that where a person claims a decree for specific performance, it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract and that if he failed to do so, his claim for specific-performance must fail. Their Lordships referred to the observations of the Privy Council in Adeshir H. Mama v. Flora Sassoon2, where the Privy Council pointed out as follows:-

“In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment bro