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2010 DIGILAW 947 (PAT)

Nagendra Kumar v. Arbind Tanti

2010-04-23

MUNGESHWAR SAHOO

body2010
JUDGEMENT 1. Heard the learned counsel for the appellants and the learned counsel for the respondent on the interlocutory applications, i.e., I.A. No.2890 of 2010 and I.A. No.2891 of 2010. 2. The I.A. No.2890 of 2010 has been filed by the appellants under section 28 (1) of the Specific Relief Act read with Order 41 rule 33 C.P.C. The learned counsel for the appellants submitted that by the impugned decree dated 11.12.2007 the court below had directed the respondents to pay Rs.1,75,000/- within two months from the date of decree and after receipt of consideration the appellants were directed to execute the deed of reconveyance in favour of the respondents. The learned counsel further submitted that the period of two months expired on 10.2.2008 but no payment was made and it is stated that the respondents had not prayed for extension of the period. On these facts he submitted that the contract may be rescinded as provided under section 28(1) of the Specific Relief Act and, therefore, according to the learned counsel this application has been filed for rescission of the contract. 3. The learned counsel for the respondent has filed a counter affidavit and submitted that the direction was against the appellants to execute the sale deed on receiving the consideration amount. But the appellants did not obey the decree despite the fact that the respondent was always ready to hand over the part of the consideration money. 4. it is admitted fact that the learned court below is proceeding ahead pursuant to the judgment and decree impugned in this appeal. This application has been filed for the first time before this Court. 5. 4. it is admitted fact that the learned court below is proceeding ahead pursuant to the judgment and decree impugned in this appeal. This application has been filed for the first time before this Court. 5. For better appreciation Section 28(1) of the Specific Relief Act is reproduced hereinbelow: "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." In view of the above provision the appellants were required to file the application before the court where the suit is pending for final decree. 6 The learned counsel relied upon a decision reported in A.I.R. 1978 Andhra Pradesh 337 (M. Shakuntala Devi V/s. Shakuntala and others.) From perusal of the said decision it appears that there was a direction to the decree holder to deposit the amount in the court and the said amount was not deposited. In the present case from the decree it appears that the order was passed directing the defendant appellant to execute the sale deed after receiving the rest compensation amount. It is the contention of the respondent that he repeatediy offered money but the appellants refused to take and register the sale deed and, therefore, the respondents are taking steps to deposit the same through challan. In view of these facts this decision cited by the appellants is not applicable and is not helpful to him. 7. The learned counsel next relied upon a decision reported in A.I.R. 1986 Punjab and Haryana 152 (Onkar Nath V/s. Basir). From perusal of the said decision it appears that the application was filed before the court below for rescission of the contract which was refused by the court below and against that order revision was filed. Therefore, this decision helps the respondents. Admittedly the appellants have not filed this application before the court below. From perusal of the said decision it appears that the application was filed before the court below for rescission of the contract which was refused by the court below and against that order revision was filed. Therefore, this decision helps the respondents. Admittedly the appellants have not filed this application before the court below. In section 28 the court below trying the suit has the jurisdiction to extend the time granted in the decree. Whether time was extended or not and whether section 28 application is fit to be allowed or not can be gone into by the trial court itself and moreover, the provision itself provides for filing the application before the trial court which has not been done here. 8. The learned counsel next relied upon a decision reported in A.I.R. 1994 S.C. 1699 (Ramankutty Guptan V/s. Avara) and submitted that application under section 28 of the Specific Relief Act can also be filed before the appellate court.The learned counsel further submitted that the appeal is continuation of the suit and, therefore, the application is maintainable before the appellate court also and the appellate court can also rescind the contract. 9. From perusal of the decision it appears that in that case the suit for specific performance was dismissed and thereafter in the appeal the appellate court being the High Court decreed the suit and in such circumstance the Honble Supreme Court has held that the application is maintainable before the appellate court being the High Court decreed the suit and in such circumstance the Honble Supreme has held that the application is maintainable before the appellate court where the suit was decreed. In the said decision at paragraph 7 it has been held that the application should be in the same suit. It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under section 28(1) of the Act either for extension of time or for rescinding the contract. Therefore, this decision is directly against the appellant. 10. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under section 28(1) of the Act either for extension of time or for rescinding the contract. Therefore, this decision is directly against the appellant. 10. So far I.A. No.2891 of 2010 is concerned it appears that this application has been filed under section 28 (3) of the Specific Relief Act read with section 151 C.P.C. by the appellant praying therein to stay the orders passed by the court below dated 4.5.2009, 10.6.2009 and 10.9.2009. 11. Pursuant to the decree passed in the suit for specific performance the court below is proceeding ahead for execution of the sale deed and passed the aforesaid orders. From perusal of the said orders it appears that the court below has directed to file the draft sale deed and also directed the respondent to deposit the rest compensation amount in the Nazarat. Therefore, I find no merit in this application and the appellants have not preferred any civil revision against the said orders. The said orders cannot be challenged in this interlocutory application. Moreover, for execution of the decree under appeal the learned court below is proceeding ahead and therefore, I am not inclined to stay the further proceeding in the court below. In view of the above facts and circumstances and settled law I.A.No.2890/ 10 and I,A. No.289 of 2010 are rejected.