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PETITIONER: SARDAR MOHAR SINGH THROUGHPOWER OF ATTORNEY HOLDER, MANJIT S

       Vs.

RESPONDENT: MANGILAL @ MANGTYA

DATE OF JUDGMENT:       15/01/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      This 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. The 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. Thus, this special leave petition.      Shri 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

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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:      "Where 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.      The special leave petition is dismissed.