An application under Section 28 of the Specific Relief Act for rescission of contract or extension of time must be decided as an application in the original suit and not within the execution proceedings, even if the executing court is the court of first instance.

ORDER

The present petition has been filed challenging the order passed by the Executing Court dated 05.10.2023, whereby the Executing Court has rejected the application of the judgement debtor under Section 28 of Specific Relief Act, which was for rescission of contract for sale of immovable property, the specific performance of which has been decreed.

The necessary facts shorn of details for the purpose of the present petition are that a decree for specific performance has been passed on 31.10.2019 granting specific performance of agreement dated 17.10.2012 to the respondent-plaintiff. It was recorded by the Executing Court that out of agreed sale consideration of Rs.50.00 lakhs, an amount of Rs.8.50 lakhs has been paid by the plaintiff and therefore, decree was passed to the effect that the remaining amount of Rs.41,49,812/- shall be paid to the defendant and upon such payment within 3 months from the date of decree, the sale deed shall be registered by the defendant in favour of plaintiff, failing which the plaintiff shall be entitled to get the sale deed executed by executing the decree through Court.

Against the aforesaid judgement and decree dated 31.10.2019, appeal was filed by the petitioner but the same was withdrawn on 09.12.2020. Then execution petition was filed by the plaintiff on 11.10.2021 in which the petitioner filed an application under Order 21 Rule 97 firstly on 16.11.2022 and secondly on 12.04.2023, however, both the applications suffered rejection. After filing of the first application under Order 21 Rule 97 CPC, the plaintiff filed an application before the Executing Court seeking permission to deposit the remaining sale consideration in the Executing Court, which was granted by the Executing Court vide impugned order dated 05.10.2023 and thereafter the amount is stated to have been deposited on 29.11.2023 before the Executing Court.

The petitioner thereafter filed an application under Section 28 of Specific Relief Fact stating that since time was fixed to get the sale deed registered after making payment of various consideration within 3 months of decree, therefore, the plaintiff not having paid the amount within 3 months, the defendant is entitled to benefit of Section 28.

Before this Court, it was vehemently argued that the aforesaid period of 3 months was over in January, 2019 itself and the same was even before onset of COVID-19 first wave of pandemic. It is argued that even if the delay can be said to be bona fide on account of the petitioner filing regular appeal against the judgement and decree, even then the regular appeal was withdrawn on 09.12.2020 and within 3 months of that the plaintiff could have paid the amount. It is further argued that the plaintiff filed execution petition after 10 months of withdrawal of regular appeal on 09.12.2020 i.e. on 11.10.2021. Even in the execution the plaintiff did not turn up at the first instance to pay the amount, but moved an application seeking permission to deposit the amount only on 19.12.2022 which is 1 year 1 month after filing of execution petition. Therefore, it is a clear case where the plaintiff has avoided to pay the amount and by placing vehement reliance on judgement of the Hon'ble Supreme Court in the case of P. Shyamala v. Gundlur Masthan , 2023 SCC OnLine SC 184, it is argued that the defendant is entitled to benefit of Section 28 of Specific Relief Act.

It is further argued that so far as the judgement of Division Bench of this Court in Khoobiram vs. Smt. Urmila Chouhan and others , (2010) 3 MPLJ 522 is concerned, the aforesaid judgement is in view of the peculiar facts of the said case whereby one of the judgement debtor had murdered one of the decree holders and therefore, in the peculiar facts of the case the Division Bench of this Court had held that in absence of the judgement debtor issuing a notice to the decree holder it could not be inferred that the judgement debtor was eager and willing to receive t