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CASE NO.: Appeal (civil)  5494 of 2000

PETITIONER: Chanda (dead) Through LRs

RESPONDENT: Rattni  & Anr

DATE OF JUDGMENT: 23/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

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 room."   

       The plaintiff did not deposit the balance sale price  within two months from the date of the decree, and the

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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 decisions.  

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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

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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

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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 rejected.   

       Above being the position, there is no merit in this  appeal which is dismissed without any order as to costs.