V. K. GUPTA, J. ( 1 ) -THIS appeal is directed against an Order dated 31st July, 1996 passed by the learned Assistant District Judge, 2nd court, Alipore in proceedings under section 28 of the Specific Relief Act filed by the Respondents in this appeal. The brief facts leading to filing of the appeal may be stated as hereinbelow: the Appealant Tivoli Park Apartments (Pvt) Ltd. , a Company incorporated under the Companies Act filed Title Suit No. 176 of 1981 in the court of learned Assistant District Judge, Alipore on 29th August, 1981 wherein a decree of Specific Performance in respect of an agreement executed on 16th August, 1980 was prayed for by the Appellant (Plaintiff in the suit ). The subject matter of the aforesaid Suit and the dispute in the present appeal both relate to a piece of land in premises No. 225, A. J. C. Bose Road, Calcutta. The Respondents in this appeal are the Trustees and Shebaits of the Trust Estate of Raja Rajendra Mallick Bahadur. On 25. 11. 60 a lease in respect of the property in question was executed in favour of one Md. Ismail for a period of 21 years commencing from 1-05-1960. By a Deed of Assignment executed by the aforesaid Md. Ismail on 20th August, 1970, the leasehold rights in respect of the property in question were transferred by the aforesaid lessee Md. Ismail in favour of the appealant for the residuary period of the lease, i. e. 11 years starting from 1970 and going upto 30th April, 1981. It was the case of the appellant before the Assistant District Judge at Alipore in the aforesaid Title Suit No. 176 of 1981 that on 16th August, 1980 even while the aforesaid lease was subsisting, an agreement was entered into between the appellant/plaintiff and the trustees of the property for extension/renewal of the lease in favour of the appellant for a further period of the lease in favour of the appellant for a further period of 70 years from the date of expiry of the lease executed on 25. 11. 60. It was the case of the appellant/plaintiff that the aforesaid oral agreement entered into between the parties on 16. 08. 80 contained the following terms :- (A) The plaintiff (TPAPL) shall pay a sum of Rs. 11. 60. It was the case of the appellant/plaintiff that the aforesaid oral agreement entered into between the parties on 16. 08. 80 contained the following terms :- (A) The plaintiff (TPAPL) shall pay a sum of Rs. 30,00,000/- (Rupees Thirty lacs) to the respondents (Trustees) at the time of renewal of the Lease as and by way of premium. (b) The rent for the premises in suit shall be Rs. 30,000/- (Rupees Thirty thousand) per month during the whole of the terms of the renewed lease. (c) The plaintiff shall pay a sum of Rs. 4,00,000/- (Rupees four lacs) as and by way of advance and as earnest pending the execution of the Lease. (d) The other terms and conditions of Lease shall be the same as were contained in the existing lease. ( 2 ) THE disputes, thus having arisen between the parties, the respondents disclaiming the existence, execution, validity, legality or enforceability of the aforesaid alleged agreement the appellant/plaintiff filed Title Suit No. 176 of 1981. Vide Judgment and Decree passed on 25-07-85 the learned Assistant District Judge, 2nd court, Alipore passed an ex-parte Decree in favour of the appellant and against the defendants/respondents for Specific Performance in respect of execution, registration and delivery of a proper Lease Deed in favour of the plaintiff/appellant in terms of the aforesaid agreement stated to have been executed on 16-08-80 in respect of the property in question. The following operative part of the Decree may be re-produced for ready reference :"that the suit be and the same is decreed ex-parte with costs against the defendants. Defendants do execute register and deliver a lease and in favour of the plaintiff in terms of agreement as entered between the parties in respect of the premises No. 225b, Acharya Jagadish Chandra Bose Road, Calcutta within 90 days from the date of decree failing which the plaintiff will be at liberty to get the same through the court by way of execution. " ( 3 ) IT is worthwhile to note here that this ex-parte decree has become final as between the parties. " ( 3 ) IT is worthwhile to note here that this ex-parte decree has become final as between the parties. ( 4 ) ON 3rd October 94 the respondents (defendants in the Suit) filed an application under section 28 of the Specific Relief Act read with section 151 of the Code of Civil Procedure alleging that the plaintiff/appellant had defaulted in the payment of the amount as directed in the Decree dated 25-07-85 and therefore, the necessary consequence of the decree being set aside would follow along with the consequential order of rescinding the Agreement dated 16th August, 1980. Para 39 of the application reads thus :"in the facts and the circumstances of the case as mentioned hereinabove, the petitioners submit that an order should be made forthwith recalling and/or setting aside the decree dated 25th July, 1985 passed in Title Suit No. 176 of 1981 as also for the rescision of the purported contract dated 16th August, 1980. " ( 5 ) THE application contained the following prayer:"your petitioners, therefore, humbly pray that your honour may be pleased to pass an order recalling and/or setting aside the exparte decree dated 25th July 1985 passed in Title Suit No. 176 of 1981 rescinding the purported Agreement dated 16th August, 1980 and to pass such order or orders as Your Honour may deem fit and proper. " ( 6 ) IT is under these circumstances that the Order impugned in this appeal was passed on 31st July, 1996 by the learned Assistant District Judge, Alipore. The operative part of the Order reads as under :-"that the petitioner under section 28 of the Specific Relief Act dated 3. 10. 94 is allowed on contest with costs. The decree dated 25. 7. 85 is set aside and as a consequence the agreement dated 16. 8. 80 is hereby rescinded. The plaintiff/decree-holder is hereby directed to restore possession of the suit property to the petitioners within 3 months of this order and the plaintiffs-D/holder is also directed to pay all rents dues till the delivery of the possession of the suit property to the petitioner with interest at the rate of 8 % per annum thereon as per provisions of the W. B. P. T. Act. Any payment made by the plaintiff-decree-holder to the defendants (Petitioners) in this regard till date shall be set off from the amount as may be found dues as per this order. " ( 7 ) SECTION 28 of the Specific Relief Act runs like this :"section 28. Recision 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 rescined 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 the 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 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. ( 8 ) A bare look at section 28 suggests beyond any doubt whatsoever that the order impugned in this appeal as passed by the court below is patently without jurisdiction, de hors section 28 and totally contrary to the requirements of law. First and foremost, what is noticeable is that the pre-requisite for invoking section 28 of the Specific Relief Act, namely the fixation of any period for payment of the amount as ordered by the decree is absent in this case. As will be noticed from a mere look at the decree passed on 25/7/85, the court had not fixed or allowed any period whatsoever in so far as the plaintiff was concerned for depositing any sum of money in respect of the Agreement in question. Even though the decree did not specify, fixed or allowed for any such period for payment of money one could have stretched the application of section 28 had the Agreement forming the subject matter of the suit provided or fixed any period within which the plaintiff-decree holder was required to pay any sum as a condition for execution and registration of the Lease Deed. We have re-produced the purported terms of the Agreement orally stated to have been entered into between the parties on 16th August 1980 and we have failed to notice any stipulation in those terms with regard to any such period. Section 28 therefore had no applicability in the case. ( 9 ) WE may assume, for the sake of argument that the decree had fixed or allowed any period for payment of money and that section 28 was applicable. In conformity with such assumption, we may also assume that the allegations in the application filed by Respondents under section 28 of the Specific Relief Act were correct and the appellant was a defaulter, as within the purview of section 28 and thus liable to such forfeiture as is contemplated therein. Suppose we presume such an eventuality what should be the consequence. Suppose we presume such an eventuality what should be the consequence. ( 10 ) THE learned court below, as will be evident from a perusal of the impugned order has set aside the decree dated 25-07-85, and consequentially rescinded the Agreement on 16th August, 1980. After doing so, it has directed the appellant to restore possession of the suit property to the Respondents within three months from the date of passing of the order and to pay all rents due etc. etc. First of all, section 28 does not contemplate the setting aside of the decree at all. Whatever may be the meaning of the expression used in section 28, it merely contemplates the recission of the Agreement. The only power which the court has is to rescind the Agreement if it finds the Plaintiff a defaulter. It has no power to set aside the Decree. ( 11 ) IN so far as the question of restoration of possession is concerned, the court below committed a grave error and completely misdirected itself by directing the appellant/plaintiff to restore the possession of the property to respondents. Such an order in the facts and circumstances of this case, as we shall presently see was beyond the scope of section 28 and far beyond the jurisdiction of the court. Sub-section (2) of section 28 does empower the court after it makes an order of recision of the Agreement, to direct the restoration of the possession, but any order directing such restoration of possession can be passed only if the possession itself was obtained by the plaintiff under the Agreement which has been rescinded by the court under section 28 of the Act. It is very natural that once the court rescinds the Agreement because of the default of the plaintiff, and if the Plaintiff based on the aforesaid Agreement had obtained possession of the property, the restoration of such possession of the opposite party should be the necessary corrollary of an order of recision of the Agreement. One cannot be allowed to continue taking the benefit of possession of property even though the agreement under which such possession was taken had been rescinded by the court. Such is not the position however in our case. One cannot be allowed to continue taking the benefit of possession of property even though the agreement under which such possession was taken had been rescinded by the court. Such is not the position however in our case. Here the appellant had come into possession of the property on 28th August, 1970 because of the execution of the deed of assignment in its favour by the original Lessee Md. Ismail who had been granted a lease of 21 years by the Respondents which was valid upto 31st April 1981. It is the undisputed case of the Respondents themselves that the appellant had stepped into the shoes of the original lessee Md. Ismail and it had become the lessee of the property under a Lease which was valid upto 30th April, 1981. Good, bad, illegal or unenforceable, the Agreement forming the subject matter of the dispute is alleged to have been entered into on 16th August, 1980. As on 16th August, 1980 therefore, the appellant was already in possession of the property under the force of the lease executed on 25. 11. 60. The appellant therefore cannot be said to have obtained the possession of the property under the Agreement dated 16. 08. 80. As on 16th August, 80 the appellant was a tenant in respect of the property, based on a lease which was to expire on 20th April, 1981. Even if the agreement dated 16th August, 1980 was to be declared as non-existent, illegal, not binding or unenforceable, the possession of the appellant either between 16th August, 1980 and 30th April, 1981 or even after 30th April, 1981 was not in any way relatable to the agreement dated 16th August, 1981 since possession was based on the lease which was at that time subsisting and which was to expire on 30th April, 1981. Even beyond 30th April, 1981 the appellant's possession, being a tenant holding over for a statutory tenant was relatable to the Lease dated 25. 11. 1960 and not with the Agreement dated 16th August, 1980. The learned court below therefore fell into grave error by linking the appellant's possession with the agreement dated 16th August, 1980 and therefore wrongly ordered the restoration of possession to the Respondents. 11. 1960 and not with the Agreement dated 16th August, 1980. The learned court below therefore fell into grave error by linking the appellant's possession with the agreement dated 16th August, 1980 and therefore wrongly ordered the restoration of possession to the Respondents. ( 12 ) SINCE the appellant's possession of the property in question was not therefore relatable in any manner to the Agreement dated 16th August, 1980, it was wrong and incorrect on the part of the trial court to have directed the Appellant to restore the possession to the Respondents. From whatever angle we look into the order impugned in the appeal, we fail to find any supporting reasons or any material on record which would warrant the passing of such an order. On all such counts therefore, according to us the order is patently illegal and suffers from gross irregularities. The order accordingly is set aside. The Appeal is allowed with costs throughout. P. K. Sen. J.-I agree. Appeal allowed.