The main legal point established in the judgment is that the provisions of Section 28 of the Specific Relief Act, 1963 were crucial in determining the rescission of the contract for the sale of immovable property.

Ram Surat Ram (Maurya), J. –

Heard Sri. Nitin Sharma for the petitioners.

2. This petition has been filed for setting aside the order dated 22.12.2015 rejecting the objection of the petitioner under Section 28 of Specific Relief Act, 1963 and the order dated 3.3.2016 dismissing the revision of the petitioner filed against the aforesaid order.

3. For specific performance of agreement to sell dated 4.6.1992, the respondent filed a suit i.e. O.S. No. 32 of 1994 which was decreed by the trial court by judgement dated 20.5.1999. The defendant challenged the aforesaid decree in Civil Appeal No. 160 of 1999 which was dismissed on 18.3.2006. Thereafter the defendant challenged the appellate court decree in Second Appeal No. 477 of 2006 which was also dismissed on 14.5.2009. For execution of decree dated 20.5.1999, the defendant filed Execution Case No. 11 of 2008 on 18.9.2008. During pendency of execution application, the plaintiff moved an application before the Executing Court for permitting him to deposit the balance amount of sale consideration on 9.12.2011. The application was allowed by the Executing Court by order dated 27.1.2012 and in pursuance thereof the balance amount of sale consideration was deposited.

4. The petitioners, who are heirs of original judgement debtor, filed an application under Section 28 of Specific Relief Act, 1963 in the execution proceeding for rescission of contract. It has been stated by the petitioners that under the decree dated 20.5.1999, one month's time was prescribed to execute the sale deed after taking balance sale consideration. This part of the decree castes a part of liability upon the defendant to execute the sale deed and castes a part of liability upon the plaintiff to deposit the balance sale consideration. But the plaintiff has neither deposited the balance sale consideration within time allowed by decree dated 20.5.1999 nor he sought any permission from the court for extension of time granted in the decree dated 20.5.1999, as such in view of Section 28 of Specific Relief Act 1963 original agreement to sell has been rescinded and the decree is not executable. The application was heard by Executing Court who by the impugned order dated 22.12.2015 found that the decree was not the conditional decree. The time of one month as fixed casted an obligation to execute the sale deed, however the defendant instead of executing the sale deed, challenged the decree in appeal and thereafter in second appeal which was dismissed by this Court on 14.5.2009. From 14.5.2009 the amount has been deposited within time as such there is no rescission of the contract and on this finding he rejected the application of the petitioners. The petitioners challenged the aforesaid order in Civil Revision No. 121 of 2016 which has also been dismissed by District Judge by order dated 3.3.2016. Hence this petition has been filed.

5. I have considered the arguments of the counsel for the petitioner and examined the records.

6. Section 28 of Specific Relief Act, 1963 is quoted below : -

"28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed-

(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.

(2) Where a contract is rescinded under sub-section (1), the court-

(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore suc