ORDER Abhay M. Naik, J. 1. This petition under Article 227 of the Constitution of India has been preferred against the order dated 30-4-2008 passed by the Court of I Vth Additional District Judge, Gwalior, in Execution Case No. 1A/2000X03X07. 2. Briefly stated relevant facts are that on 5-11-92 Respondent Nos. 1 and 2 instituted Civil Suit No. 1A/2000 with allegations that the Defendant/Petitioner owned an agricultural land comprised in Survey No. 1031/1 min in area 0.355 hectare situated at village Girwai, Tahsil and District Gwalior (M.P.). He executed an agreement of sale dated 28-11-90 in favour of the Plaintiffs for a consideration at the rate of Rs. 32,500/- per bigha. Total consideration was to the tune of Rs. 55,250/-. He did not execute the sale deed in favour of the Plaintiffs despite there being readiness and willingness on the part of the latter. Instead, he executed registered sale deed dated 25-6-96 in favour of Defendant/ Respondent Nos. 3 and 4 for a consideration of Rs. 89,000/-. Plaintiff/Respondent Nos. 1 and 2 instituted Civil Suit No. 1A/2000 against Defendant/Petitioner and Respondent Nos. 3 and 4 for specific performance of agreement of sale and restoration of possession which was forcibly taken by Respondent Nos. 3 and 4 during pendency of the suit. Declaration was also sought that the registered sale-deed dated 25-6-96 is null and ineffective. After trial, learned Trial Judge vide judgment and decree dated 13-5-03 granted a decree in favour of the Plaintiffs. Defendant/Petitioner was directed to receive balance consideration in pursuance of the sale-agreement dated 28-11-90 and execute the registered sale deed in favour of the Plaintiffs. It was further directed that in case if Defendant/Petitioner fails to receive the balance consideration and execute the registered sale deed within a period of two months, Plaintiffs would be entitled to get the sale deed executed from the Court by way of execution. 3. Respondent Nos. 3 and 4 submitted First Appeal No. 188/03 against the aforesaid judgment and decree which was dismissed on 22-8-06 which was also upheld by the Apex Court on 14-3-07. 4. It is pertinent to note that since the decree against the Defendant/Petitioner was passed ex parte, an application under O. IX, Rule 13, Code of Civil Procedure was submitted which was dismissed by the trial Court on 23-11-07. 4. It is pertinent to note that since the decree against the Defendant/Petitioner was passed ex parte, an application under O. IX, Rule 13, Code of Civil Procedure was submitted which was dismissed by the trial Court on 23-11-07. Aggrieved by it, M.A. No. 208/08 was preferred which too, was dismissed by the Court on 3-3-2008. 5. Plaintiffs/decree-holders put the decree into execution and submitted draft sale-deed for being executed in their favour. 6. Defendant/Petitioner submitted objection that the balance consideration was neither paid to him by the decree-holders; nor was deposited by them in the Court. Moreover, the cost of litigation was deducted from balance of consideration. Therefore, execution is liable to be dismissed. Plaintiffs/decree-holders submitted their reply as revealed in Annexure P-4. Thereafter, the executing Court after hearing the arguments directed the decree-holder to deposit the balance money within one month by the impugned order dated 30-4-08 (Annexure P-1). Aggrieved by it, the Petitioner preferred present petition mainly on the ground that the decree-holders having failed to deposit the balance consideration within the stipulated period have no right to execute the decree. Time for deposit could not have been extended by the Executing Court in the absence of an application at the instance of the decree-holders. 7. Though the Plaintiffs/decree-holders did not submit return being matter of record, they submitted reply to the application for interim relief which is duly supported by an affidavit of Respondent No. 1. Allegations for dismissal of execution petition were refuted. Additionally, it has been stated that 12-1-09 was fixed by the Executing Court for delivery of possession when Respondent No. 3 and his brother committed murder of decree holder No. 2 on 10-1-09. Sessions Trial in respect of it is pending in the Court of Session's Judge, Gwalior. This Court has requisitioned the record of F.A. No. 188/03, M.A. 208/08 and that of the execution proceedings. 8. We have perused the entire record. Main contention of Shri K.N. Gupta, learned Senior Advocate appearing for Defendant/ Petitioner, is that the decree-holders were directed to make deposit of the balance consideration within two months which was not complied with. No offer/tender was made by the decree-holders to the Defendant/Petitioner within a period of two months. Decree-holders despite failure on their part to make deposit within the stipulated period did not seek extension of time. No offer/tender was made by the decree-holders to the Defendant/Petitioner within a period of two months. Decree-holders despite failure on their part to make deposit within the stipulated period did not seek extension of time. Therefore, the objections of the Petitioner were liable to be accepted and the execution case ought to have been dismissed, since the contract in favour of the decree-holders was liable to be rescinded in view of Section 28 of the Specific Relief Act, 1963. Reliance by him is placed on a decision of the Apex Court in the case of Chanda (Dead) through L. Rs. v. Rattni and another ( (2007) 14 SCC 26 : AIR 2007 SC 1514 ) wherein it has been held: 8. 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. Reliance for this purpose has also been placed on another decision of the Apex Court in the case of Bhupinder Kumar v. Angrej Singh (2009) 8 SCC 766 wherein it is held: 21. It is clear that Section 28 gives power to the Court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial Court which passes the decree of specific performance. In other words, when the Court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree. 22. Sub-section (1) of Section 28 makes it clear that the Court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree. 22. Sub-section (1) of Section 28 makes it clear that the Court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the Court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the Court has to see all the attending circumstances including the conduct of the parties. Relying upon another decision of the Supreme Court of India in the case of V.S. Palanichamy Chettiar Firm v. C. Alagappan and another, AIR 1999 SC 918 : AIR 1999 SC 918 ), it has been contended that the time for deposit of balance consideration could not have been extended by the Executing Court. In view of Dr. Ram Kumar v. Mahadeo Lal and another, AIR 1962 Raj 54 , it has been held that extension of time can be granted only by the Court granting a decree and not by Executing Court. A feeble attempt has been made in the light of the Full Bench decision of Jammu and Kashmir High Court in the case of Bindru v. Kikru and Ors., AIR 1988 J & K 1, to contend that period fixed for deposit of money cannot be extended after expiry of such period. Case before the Jammu & Kashmir High Court was related to preemption and the decree itself was conditional inasmuch as the payment was to be made within a period/time in a particular manner. This being so, condition incorporated in the decree was taken as a command and it was not found to be within the discretion of the Court for the purpose of extension of time. In the case in hand, the suit was not for preemption but was for specific performance and the decree granted in favour of the decree holders was not conditional at all as observed hereinafter. 9. Before dealing with the legal aspects, we feel it proper to appreciate the factual aspects of the case. In the case in hand, the suit was not for preemption but was for specific performance and the decree granted in favour of the decree holders was not conditional at all as observed hereinafter. 9. Before dealing with the legal aspects, we feel it proper to appreciate the factual aspects of the case. Agreement of sale was executed, as found by the learned Trial Judge, by Defendant No. 1 in favour of Plaintiffs on 28-11-90 for a consideration of Rs. 55,250/-out of which Rs. 37,000/- were paid as advance. There remained a balance consideration of Rs. 18,250/-. Suit for specific performance was instituted on 5-11-92. During pendency of the suit, Defendant/Petitioner executed a registered sale-deed in favour of Respondent Nos. 3 and 4. According to the sale-agreement, consideration was settled at Rs. 1,27,500/-. Registered sale-deed dated 25-6-96 was shown to have been executed for a consideration of Rs. 89,000/-. This all weighed with the trial Court which granted a decree for specific performance as well as restoration of possession in favour of Plaintiffs to the following effects: 1. In pursuance of the agreement dated 28-11-90, Defendant No. 1 shall receive the balance consideration from the Plaintiffs and shall execute the registered sale deed in respect of the suit land comprised in Survey No. 1031/1 min in area 0.355 hectare situated at village Girwai, Tahsil and District Gwalior (M.P.). 2. In case of failure on the part of Defendant No. 1 to receive balance consideration and execute the registered sale deed within a period of two months from the date of decree, Plaintiffs would be at liberty to get the sale-deed in respect of the suit land executed through the Court. 3. Registered sale-deed dated 25-6-96 having been executed by Defendant No. 1 in favour of Defendant Nos. 3 and 4 during pendency of suit is declared void and ineffective qua the Plaintiffs. 4. Defendant Nos. 3 and 4 shall hand over the vacant possession of the suit land to the Plaintiff within a period of two months from the date of decree. Defendant Nos. 3 and 4 shall bear their own expenses and shall bear the cost of the suit of the Plaintiffs. In order to bring more clarity, the decree is reproduced below verbatim: DECREE IN ORIGINAL SUIT (Code of Civil Procedure 1908, Order XX, Rules 6 and 7 (Vernacular matter omitted.... Ed.) 10. Defendant Nos. 3 and 4 shall bear their own expenses and shall bear the cost of the suit of the Plaintiffs. In order to bring more clarity, the decree is reproduced below verbatim: DECREE IN ORIGINAL SUIT (Code of Civil Procedure 1908, Order XX, Rules 6 and 7 (Vernacular matter omitted.... Ed.) 10. Aggrieved by the aforesaid, Defendant Nos. 3 and 4 submitted F.A. No. 188/03 on 14-07-03 wherein stay against execution was granted on 25-07-03. Appeal was admitted on 16-03-05. Ultimately, it was dismissed on 22-08-06. MJC No. 24/06 submitted by Defendant/Petitioner for setting aside the judgment and decree under Order IX, Rule 13 Code of Civil Procedure was dismissed by the trial Court on 23-11-07, M.A. No. 208/08 preferred against the same was dismissed on 03-03-08. 11. Defendants were liable to bear the expenses of litigation amounting to Rs. 5,262/-. After deducting the same from the balance consideration, a sum of Rs. 12,989/- was deposited by the decree-holder on 19-02-07. On objections having been filed, the decree holders deposited the balance consideration mistakenly deducted towards litigation expenses amounting to Rs. 5262/- on 12-05-08. From perusal of the proceedings of the execution case, it is revealed that the execution petition was submitted on 28-07-03. Execution proceedings remained stayed by virtue of this Court's order dated 25-07-03 passed in F.A. No. 188/03 up to 18-08-06. On 27-09-06, the order of dismissal of F.A. 188/03 was received by the Executing Court and the case was fixed for 17-10-06 on account of the Executing Judge being on leave. On 17-10-06, notices of execution petition were issued to judgment-debtors requiring them to execute the registered sale-deed in favour of the decree-holders and to deliver possession of the suit property. On 6-02-07, both the parties were directed to make compliance of order dated 17-10-06. It is revealed in further order sheet dated 09-02-07 that the judgment-debtor did not provide information with respect to compliance of order dated 17-10-06. However, the Executing Court directed that on payment of balance consideration by the decree-holders, judgment-debtor shall take necessary steps for execution of the decree. Accordingly, decree-holders with the permission of the Executing Court granted on 17-02-07 deposited a sum of Rs. 12,989/- on 19-02-07. Decree-holders were directed on 23-04-07 to submit draft sale-deed according to the decree in their favour. However, the Executing Court directed that on payment of balance consideration by the decree-holders, judgment-debtor shall take necessary steps for execution of the decree. Accordingly, decree-holders with the permission of the Executing Court granted on 17-02-07 deposited a sum of Rs. 12,989/- on 19-02-07. Decree-holders were directed on 23-04-07 to submit draft sale-deed according to the decree in their favour. On 30-04-07, Defendant No. 3 submitted objections under Section 47 Code of Civil Procedure with allegations that huge construction has already been made on the suit land which was made within the knowledge of the decree-holders. On 04-12-07, the Executing Court stayed the executing proceedings for one month to enable the judgment-debtor to approach the High Court against order 23-11-07 dismissing thereby application for issuance of commission under Order XXVI, Rule 9 Code of Civil Procedure. On 16-01-08, learned Executing Judge dismissed the application under Section 47 read with Section 151 of Code of Civil Procedure and granted two months' time to Respondent Nos. 3 and 4 to remove the alleged construction at his own cost. Thereafter, 07-03-08 judgment-debtor/Petitioner submitted objections on draft sale-deed which have been dismissed by the impugned order. 12. On 08-12-08, learned Executing Judge directed that the alleged construction on the suit land is liable to be removed which was not removed by judgment-debtors despite direction on 16-02-08. Accordingly, District Nazir was directed to remove the alleged construction from the suit land for effecting delivery of possession to decree-holders. Decree-holder No. 2 died on 10-01-09 on account of having been murdered allegedly by judgment-debtor/Respondent No. 3 and his brother. Sessions Trial is stated to be pending against them as deposed by decree-holder No. 1 vide her reply in this Court duly on affidavit. Consequently, the L. Rs. of decree-holder No. 2 have been brought on record in the present writ petition. 13. At this stage, we feel it proper to refer to Section 28 of the Specific Relief Act, 1963, which is being reproduced below: 28. Consequently, the L. Rs. of decree-holder No. 2 have been brought on record in the present writ petition. 13. At this stage, we feel it proper to refer to Section 28 of the Specific Relief Act, 1963, which is being reproduced below: 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 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. Aforesaid provision enables the vendor to apply in the Court to have contract rescinded. On such application, the Court may by order rescind the contract either in regard to party in default or altogether as such the justice of the case may require. From perusal, it is clear that no such application under Section 28 of the said Act was submitted by the judgment-debtors. Impugned order has been passed on the objections submitted by the Defendant/Petitioner on the draft sale-deed submitted by the decree-holders. There is no prayer in the objections to rescind the contract. Since a prayer for dismissal of execution proceedings on the ground of failure of the decree-holders to deposit the consideration in due manner has been raised, we consider the objections in the light of Section 28 (supra). 14. Section 28 (supra) comes into play when a purchaser under the decree does not within the period allowed by the decree or such further period as the Court may allow to pay the purchase money or other sum which the Court has ordered him to pay does not pay/deposit it. Thus, it becomes necessary for the Court (us) to examine that whether while granting the decree the decree holder purchaser was directed to pay a particular money within a particular period and further whether the decree-holder has defaulted in making compliance of the decree in this respect. Decree granted in favour of Respondent Nos. 1 and 2 has already been produced verbatim hereinabove which goes to show that the Court while granting the decree in favour of them did not impose any obligation on them to pay the balance consideration within a particular period. Instead, the obligation was imposed upon the Defendant/Petitioner to receive the balance consideration from Plaintiffs in pursuance of the agreement dated 28-11-90 and to execute the registered sale-deed within a period of two months from the date of decree. There was no direction in the decree to the decree-holders to pay or deposit the balance consideration within a period of two months. There was no direction in the decree to the decree-holders to pay or deposit the balance consideration within a period of two months. It was for the judgment-debtor/Petitioner to receive the balance consideration and execute the sale deed within a period of two months from the date of decree. Obligation so imposed on judgment-debtor/Petitioner ought to have been discharged by him which could have been performed by issuing a notice by him to the decree-holders requiring the latter to pay the balance consideration within two months or to move a necessary application before the Executing Court within a period of two months seeking direction thereby to decree-holders to make the payment of balance consideration within the period prescribed in the decree. In none of the clauses of the decree any condition is imposed on the decree-holders to make the payment of consideration within a particular or stipulated period. Decree under execution is couched and worded in a specific manner which obliges the judgment-debtor/Petitioner to receive balance consideration and execute the registered sale-deed within a period of two months from the date of decree. There is no specific direction in the decree to the decree-holders to pay or deposit the balance consideration within a period of two months or in a particular period. Decree-holders could have been accused only if the judgment-debtor/ Petitioner would have within a period of two months from the date of decree as per the direction contained in the decree applied in the Executing Court or would have issued a notice to the decree holder to make the payment. This having not been done, decree-holders cannot be stated to have committed any default within the meaning of Section 28. Consequently, Section 28 of the Specific Relief Act has no application and does not get attracted in the facts & circumstances of the present case viewed in the light of the wordings employed in the decree. Admittedly, the subsequent purchasers i.e. Respondent Nos. 3 and 4 have purchased the suit property from the judgment-debtor/Petitioner during the pendency of the suit and have made construction during pendency of the suit. Accordingly, they being pendente lite transferee have been rightly directed in the decree to hand over the possession. Admittedly, the subsequent purchasers i.e. Respondent Nos. 3 and 4 have purchased the suit property from the judgment-debtor/Petitioner during the pendency of the suit and have made construction during pendency of the suit. Accordingly, they being pendente lite transferee have been rightly directed in the decree to hand over the possession. They themselves are to be blamed if the purchase itself was made of the suit property during pendency of lis and the construction was made during that period despite knowledge of pending suit for specific performance based on sale agreement in favour of Plaintiffs. They were granted time to remove the construction at their own cost. This having not been done, the Executing Court directed the Court Nazir to remove the construction and submit his report on 12-01-09. Two days before, decree-holder No. 2 was murdered allegedly by Respondent No. 3 and his brother against whom Sessions Trial is stated to be pending. Considering the entire facts and circumstances, the decree in question containing no obligation on the decree-holders to pay or deposit and balance consideration within a particular time cannot be construed in contrary manner so as to treat the decree holders as defaulters and deprive them of the fruits of the decree on the cost of life of one of the decree-holders. In case if the decree despite containing no obligation on decree holders is construed in contrary manner and decree-holders are considered as defaulters, this obviously would encourage lis pendence transfers in favour of persons with muscle powers. In the law cited by the learned Advocate for judgment-debtors, on obligation put on the decree-holder was found to have been contravened on account of failure on his part to make its compliance. In the case of Chanda ( AIR 2007 SC 1514 ) (supra), itself, it has been observed: 9. 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 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 the suit to stand dismissed. The power exercisable under this section is discretionary. Since as discussed hereinabove no time was fixed in the decree for making payment or deposit by the decree-holder, the question of extension of time did not arise so long as the execution petition is within limitation and the conditions or any of them contained in the decree is not flouted by the decree-holders. Powers under Article 227 of the Constitution of India are to be exercised to keep the subordinate Courts within the legal limitations and further to protect the litigants from injustice. Impugned order is not found to have caused any injustice. More so, it is found to be in furtherance of justice in the facts and circumstances of the case. Resultantly, there being no substance in the petition, the same is hereby dismissed summarily with no order as to costs.