(Dead) Through Lrs Vs. Rattni & Anr  Insc 325 (23 March 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of a learned Single Judge of the
Punjab and Haryana High Court dismissing the revision petition filed under
Section 115 of the Code of Civil Procedure, 1908 (in short the 'Code').
Background facts as projected by the plaintiff in a nutshell are as follows:
Defendants-respondents entered into an agreement dated 25.3.1989 to sell
land measuring 54 Kanals 3 Marlas to the original plaintiff-Chandu and received
Rs.56,000/- as earnest money. The sale deed was to be executed on or before
15.6.1989 on payment of the balance sale consideration of Rs.1,39,000/-. Since
the defendants did not execute the sale deed within the time specified in the
agreement, the plaintiff-appellant instituted a suit on 24.1.1990 for specific
performance of the agreement to sell. The suit was decreed ex parte on 1.5.1992
and it is common case of the parties that the decree has become final between
them. Para 6 of the judgment of the trial court decreeing the suit reads as
under:- "For the reasons discussed above, the suit succeeds. A decree for
possession of the suit land by way of specific performance is hereby passed in
favour of the plaintiff and against the defendants with costs.
Defendants are directed to execute the proposed sale deed on payment of the
balance sale price of Rs.1,39,000/- and get it registered within a period of
two months from the date of this decree failing which the plaintiff shall be at
liberty to get the sale deed executed and registered under Order 21 Rule 12
Code. Decree be drawn up accordingly and file be consigned to the record
The plaintiff did not deposit the balance sale price within two months from
the date of the decree, and the defendants did not execute the sale deed.
Plaintiff then moved an application on 10.10.1992 for the execution of the
decree pleading therein that since the judgment debtors-respondents had failed
to execute the sale deed the same was to be executed through court and that he
(plaintiff) be allowed to deposit the balance sale price in court. During the pendency of this application, one Sarup Singh through his general attorney
moved an application for being impleaded as a party in the execution
proceedings on the plea that he was the owner in possession of the suit land on
the basis of a decree dated 26.7.1991 which the defendants are alleged to have
suffered in his favour. The executing court as per its order dated 14.8.1995
allowed the applicant to be impleaded in the execution proceedings. Sarup Singh
then filed objections to the execution application which were dismissed as per
order dated 10.9.1998 and it was held that he was not a bona fide purchaser of
the suit land. On 8.9.1998, the judgment debtors-respondents moved an
application under Section 28 of the Specific Relief Act, 1963 (for short the
'Act') with a prayer that the agreement to sell dated 25.3.1989 be rescinded
since the plaintiff-appellant had failed to deposit the balance sale
consideration within the time allowed by the court. This application was
contested by the appellant-plaintiff and on a consideration of the contentions
advanced by the counsel for the parties the trial court as per its order dated
15.9.1998 allowed the application and rescinded the original contract dated
25.3.1989 holding that the plaintiff had failed to deposit the balance sale
consideration within the time allowed by the Court. The execution application
filed by the plaintiff-appellant was consequently dismissed. The said order was
assailed in the revision petition filed before the High Court.
Before the High Court the stand of the appellant was that the order of the
Trial Court was not sustainable as the court while decreeing the suit for
specific performance had directed the defendants-respondents to execute the
sale deed within two months from the date of decree and since they failed to do
so the plaintiff was entitled to have the sale deed executed through the court.
According to him, there was no specific direction given to the plaintiff to
deposit the balance share consideration within stipulated period and,
therefore, the Trial Court was not justified in rescinding the contract on
account of non-deposit of the balance sale price by the plaintiff. It was also
contended that several imposters were set up which disentitled the applicant
from any relief. The High Court found that para 6 of the judgment of the Trial
Court as quoted above, clearly indicated that the defendants had been directed
to execute the sale deed within two months from the date of the decree on
payment of the balance sale price of Rs.1,30,000/-. The same was, therefore, a
condition precedent for execution of the sale deed. It was implicit in the
direction that the plaintiff was required to deposit the balance consideration
within a period in the first instance and it was only then defendants were
required to execute the sale deed. Since the plaintiff did not deposit the
balance amount, the order of court below was perfectly in order. Revision
petition was accordingly dismissed.
In support of the appeal, learned counsel for the appellant submitted that
the scope and ambit of Section 28 of the Act has been examined in various
There was scope for extension of time and mere non deposit did not deprive
the appellant from getting any relief. There was no unreasonable delay in
making the request for extension of time to make deposit. Strong reliance was
placed on the decision in Kumar Dhirendra Mullick and Ors. v. Tivoli Park
Apartments (P) Ltd. (2005 (9) SCC 262).
In response, learned counsel for the respondents submitted that execution of
sale deed was to be done only after the payment or deposit in court. The
conduct of the decree-holder in not depositing is full of mala fides. He has
not deposited the amount for long 6 years i.e. between the disposal of the
execution proceedings/rescission application. The court had interpreted the
decree to mean that the deposit was condition precedent. There was no specific
prayer for deposit or for extension of time. The factual position is entirely
different from Kumar Dhirendra's case (supra). In that case there was repeated
assurance of payment but in the present case there is no such assurance.
Section 28 of the Act reads as follows:
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 such possession to the vendor or
lessor; and (b) may direct payment to the vendor or lessor of all the rents and
profits which have accrued in respect of the property from the date on which
possession was so obtained by the purchaser or lessee until restoration of
possession to the vendor or lessor, and if the justice of the case so requires,
the refund of any sum paid by the vendee or the lessee as earnest money or
deposit in connection with the contract.
(3) If the purchaser or lessee pays the purchase money or other sum which he
is ordered to pay under the decree within the period referred to in sub-section
(1), the court may, on application made in the same suit, award the purchaser
or lessee such further relief as he may be entitled to, including in
appropriate cases all or any of the following reliefs, namely:-- (a) the
execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the
property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under
this section shall lie at the instance of a vendor, purchaser, lessor or
lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the
discretion of the court."
The present section corresponds to Section 35 (c) of the Specific Relief
Act, 1877 (hereinafter referred to as the 'repealed Act') under which it was
open to the Vendor or lessor in the circumstances mentioned in that Section to
bring a separate suit for rescission; but this Section goes further and gives
to the Vendor or lessor the right to seek rescission in the same suit, when
after the suit for specific performance is decreed the plaintiff fails to pay
the purchase money within the period fixed. The present section, therefore,
seeks to provide complete relief to both the parties in terms of a decree for
specific performance in the same suit without requiring one of the parties to
initiate separate proceedings. The object is to avoid multiplicity of suits.
Likewise under the present provision where the purchaser or lessee has paid the
money, he is entitled in the suit for specific performance to the reliefs as
indicated in sub-section (3) like, partition, possession etc. A suit for
specific performance does not come to an end on passing of a decree and the
Court which has passed the decree for specific performance retains the control
over the decree even after the decree has been passed.
The decree for specific performance has been described as a preliminary
decree. The power under Section 28 of the Act is discretionary and the Court
cannot ordinarily annul the decree once passed by it.
Although the power to annul the decree exists yet Section 28 of the Act
provides for complete relief to both the parties in terms of the decree. The
Court does not cease to have the power to extend the time even though the trial
Court had earlier directed in the decree that payment of balance price to be
made by certain date and on failure suit to stand dismissed. The power
exercisable under this Section is discretionary.
As rightly contended by learned counsel for the respondents the stand now
taken was not pleaded before the trial Court and the High Court. The decision
in Kumar Dhirendra's case (supra) is clearly distinguishable on facts. In fact,
it has been noted in that case that the decree-holder was repeatedly assured of
payment. The situation is not the same here. The only stand taken was that
there was no direction to pay within a particular time.
This plea is clearly unsustainable and untenable and has been rightly
Above being the position, there is no merit in this appeal which is
dismissed without any order as to costs.
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