Mohar Singh Throughpower of Attorney Holder, Manjit Vs. Mangilal @ Mangtya
 INSC 38 (15 January 1997)
RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK
O R D E
special leave petition arises from the judgment of the learned Single Judge of
the Madhya Pradesh High Court, made on October 4, 1996 In Civil Revision No.
394/96. The petitioner had entered into a contract with the respondent for sale
of agricultural land in Khasra No 52, 61, 73,74,79, admeasuring 3-533, 0-166,
1-437, 0.384, 0.202 hectares and also an agreement to sell dated July 7, 1977
in respect of land situated in Village Khode, for a consideration of Rs. 25000/-.
The respondent failed to perform his part of the contract and, therefore, the
petitioner filed a suit bearing Civil Suit No. 9A/78 in the Court of ADJ, Mandleshwar.
The Trial Court granted a decree for specific performance on November 18, 1987
directing the respondent to refund the earnest money of Rs. 15000/- and also
damages quantified in the sum of Rs. 2,000/-, as agreed in the contract, within
a period of three months and in default to execute the sale deed. The
respondent filed applications rescind the decree in execution and he sought
extension of time for compliance.
executing Court by order dated March 15, 1996
allowed the both the applications of the respondent and directed him to deposit
the amount within three days from that date. In revision, the High Court, while
upholding that order, has, in addition to the direction of the lower court,
directed the respondent to deposit a further sum of Rs. 16000/- to compensate
the petitioner for loss of enjoyment of money.
this special leave petition.
R.S. Suri, learned counsel for the petitioner contended that in view of the inordinate
delay of 7-1/2 years in making the application and in view of the finding given
by the execution Court that no proper explanation was given by the respondent
for the delay, the execution Court as well as the High Court committed and
error of law in direction extension of time there being no proper explanation.
The High Court also was wrong in its conclusion that the decree can be treated
to be a priliminary decree and, therefore, the direction can be granted in the
final decree. it is also contended that the Court has no power to extend time.
We do not find force in any of these contentions. It is seen that sub-section
(1) of Section 28 of the Specific Relief Act, 1963 (for Short, the 'Act') gives
right to the judgment debtor to file an application to rescind the contract. It
reads as under:
in any suit a decree for specific performance of a contract for the sale or
lease of immovable property has been made and purchaser of 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 of
altogether, as the justice of the case may require," From the language of
sub-section (1) of Section 28, it could be seen that the Court does not lose
its Jurisdiction after the grant of the decree for specific performance not it
becomes functus officio. The very fact that Section 28 itself gives power to
grant order of rescission of the decree would indicate that till the sale deed
in executed in execution of the decree, the trial Court retains its power and
jurisdiction to dear with the decree of specific performance. It would also be
clear that the Court has power to enlarge the time in favour of the judgment-
debtor to pay the amount or to perform the conditions mentioned in the decree
for specific performance, in spite of a application for rescission of the
decree having been filed by the judgment-debtor and rejected. In other words,
the Court has a discretion to extend time for compliance of the conditional
decree as mentioned in the decree for specific performance, It is true that the
respondent has not given satisfactory explanation of every day's delay. It is
not, unlike Section 5 of the Limitation Act, an application for condonation of
delay. it is one for extension of time. Under these circumstances, the
executing Court as well as the High Court had exercised discretion and extended
the time to comply with the conditional decree, Accordingly, we do not find any
valid and justifiable reason to interfere with the order passed by the High
Court confirming the order of the executing court when in particular the High
Court has further enhanced a sum of Rs. 16.000/- to compensate the petitioner
for loss of enjoyment of the money. The said amount is given to the respondent
in a sum of Rs. 16,000/-, rightly for the reason that parties contracted for
no- performance of the contract. They quantified the damages at Rs. 2,000/- for
8 years the Court has given Rs. 16,000/- obviously in terms of the contract.
special leave petition is dismissed.