JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner has preferred a writ of certiorari for quashing the order dated 14.2.2013 and 14.3.2013 passed by the District Judge, Muzaffernagar and Civil Judge (Senior Division) Kairana, respectively, whereby the application under Section 28 of the Specific Relief Act, 1963 has been rejected by the Court below. 2. The essential facts of the case are that the respondent No. 2 Kareshan entered into an agreement dated 21.7.2004 to sell agricultural land plot No. 76 M Area 0.067 hectare and Plot No. 76 Area 0.921 hectare for a sum of Rs. 4,65,000/-. He filed a civil suit No. 201 of 2004 in the Court of Civil Judge, Senior Division, Kairana for cancellation of the registered agreement dated 21.7.2004 on the ground that the defendant had got the said agreement under the undue influence. 3. The respondent No. 1 Nathi Ram, when received the summons of the said suit he also instituted an Original Suit No. 35 of 2005 in the same Court viz Civil Judge Senior Division, Kairana for the specific performance i.e. for execution of sale-deed and possession. 4. The plaintiff’s (Nathi Ram/respondent No. 1 herein) case was that the defendant Kareshan (respondent No. 2 herein) executed agreement to sale dated 21.7.2004 which was duly registered for the sale of the plot No. 76 area 0.067 hectare and plot No. 76 area 921 hectare for consideration of Rs. 4,65,000/-, out of which the plaintiff had paid Rs. 10,000/- as advance and Rs. 1,90,000/- he paid on 21.7.2004 at the time of the registration of the agreement before the Registrar. It was stipulated in the agreement that balance amount Rs. 2,65,000/- shall be paid by him at the time of registration of the sale-deed. The agreement further stipulated that the vendor was required to execute the sale-deed on or before 31.1.2005 failing which the vendee/plaintiff had right to get the sale-deed executed to the Court. It was averred by the plaintiff that he was always willing to fulfill his part of contract and in this regard he has requested vendor from time to time to execute the sale-deed. When his request did not find favour of the vendor he sent a notice dated 11.1.2005 under the registered cover through his counsel which was duly served upon him. 5. When his request did not find favour of the vendor he sent a notice dated 11.1.2005 under the registered cover through his counsel which was duly served upon him. 5. During the pendency of the suit the vendor respondent No. 1 herein executed a sale-deed in favour of the petitioner herein (Subhash Maini) on 17.2.2006 which necessitated to implead him in the said suit as one of the defendant. 6. The learned Civil Judge, Senior Division by a common judgment decided both the suits vide judgment and order dated 17th August, 2011. Learned Civil Judge dismissed the suit No. 201 of 2004 filed by the vendor respondent No. 2 herein and decreed the suit No. 35 of 2005 filed by the vendee respondent No. 1 (Nathi Ram). The vendor/respondent No. 2 (Kareshan) herein was directed to execute the sale-deed within two months and also hand over the possession to the vendee. A copy of the judgment and order dated 17th August, 2001 is on the record as Annexure-6 to the writ petition. 7. Feeling aggrieved by the said order two separate appeals No. 98 of 2011 Kareshan/respondent No. 2 v. Nathi Ram respondent No. 1 herein an Appeal No. 101 of 2011 was filed by the petitioner. 8. The learned District Judge by a common judgment dated 16.1.2012 dismissed both the appeals and upheld the order of the learned Civil Judge Senior Division dated 17th August, 2011. Dis-satisfied with the order of the learned District Judge the petitioner preferred a Second Appeal No. 274 of 2004 which came to be dismissed on 19.3.2012. The vendee/respondent No. 1 herein deposited the remaining Rs. 2,65,000/- on 2nd May, 2012 after the dismissal of the Second Appeal. 9. After the dismissal of the Second Appeal the respondent No. 1 moved an application for execution before the learned Civil Judge, Senior Division. The said application was registered as Execution Case No. 1 of 2012. The petitioner under Section 28 of the Specific Performance Act 1963 (for short Act,1963) moved an application for rescission of the contract dated 21.7.2004 on the ground that the vendee respondent No. 2 herein had failed to deposit Rs. 2,65,000/- in terms of the judgment and decree dated 17th August, 2011. A copy of the said application is on the record as Annexure-8 to the writ petition. 10. 2,65,000/- in terms of the judgment and decree dated 17th August, 2011. A copy of the said application is on the record as Annexure-8 to the writ petition. 10. The learned Civil Judge, Senior Division by order dated 14.2.2013 rejected the said application of the petitioner on the ground that the vendee has already deposited the amount and as the Second Appeal was dismissed on 19.3.2012 there was no occasion for vendee to deposit the money during the pendency of the First Appeal and Second Appeal. Feeling aggrieved by the order of the learned Civil Judge the petitioner preferred a Mis. Appeal which was registered as MA No. 16 of 2013. The learned District Judge has dismissed the appeal recording a finding that Section 28 of the Act, 1963 is discretionary relief and plaintiff /vendee/respondent No. 2 has deposited Rs. 2,65,000/-, therefore, he has complied the judgment and decree. Aggrieved by the order of the learned Civil Judge and the order of the District Judge, the petitioner has preferred this writ petition. 11. I have heard Sri Dhruv Narayan learned Senior Advocate assisted by Sri Abhishek Srivastava, learned counsel for the petitioner and Sri Nipun Singh learned counsel for the respondent No. 2. 12. Learned counsel for the petitioner submits that the plaintiff has failed to deposit the requisite amount within stipulated period therefore the learned Civil Judge and the District Judge has erred in rejecting the application moved by the petitioner under Section 28 of the Act, 1983. He further submits that decree for specific performance is preliminary decree in nature and the suit is deemed to be pending even after the decree. He further urged that as there was no order of extension of time and plaintiff has failed to establish his inability to deposit the money within time, the application of the petitioner ought to have been allowed. Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Bhupendra Kumar v. Angrej Singh, (2009) 8 SCC 766; Ramankutty Guptan v. Avara, AIR 1994 SC 1699 ; Chanda (Dead) through LRS. v. Rattni and another, (2007) 14 SCC 26 and N.V.S.M.Anandvale v. K.T.Santhanakrishnan, AIR 2010 Mad 204 . 13. Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Bhupendra Kumar v. Angrej Singh, (2009) 8 SCC 766; Ramankutty Guptan v. Avara, AIR 1994 SC 1699 ; Chanda (Dead) through LRS. v. Rattni and another, (2007) 14 SCC 26 and N.V.S.M.Anandvale v. K.T.Santhanakrishnan, AIR 2010 Mad 204 . 13. Learned counsel for the respondent submits that there was no delay in depositing the balance sale consideration as no time limit was fixed by the trial Court; the opposite party against the judgment and decree of the trial Court had filed First and Second Appeal, immediately after the dismissal of the Second Appeal the vendee has deposited the amount; the petitioner had no right to move an application under Section 28 of the Act,1963 as he was not party of the contract. The respondent No. 2 had moved an application to withdraw his appeal. The relief under the Act, 1963 is a discretionary relief both the Courts have exercised their discretion on the sound principle of law and as such no interference is called for under Article 226 of the Constitution. 14. Lastly he urged that the limitation starts from the date of judgment. In the present case the limitation limit starts from the dismissal of the Second Appeal. The respondents have deposited the amount without any delay. He has placed reliance on the following judgments : (i) Chhiddi Singh @ Chhedda Singh v. Sukkhi Singh, 2013 (2) AWC 1518, (ii) Smt. Sarupi and others v. Har Gian and others, 1975 P&H 231, (iii) Ramankutty Guptan v. Avara, 1994 SC 1699, (iv) Hari Ram v. Special Judge/Additional District Judge, Ghaziabad and others, 2001 (44) ALR 186, (v) Kumar Dhirendra Mullick and others v. Tivoli Park Apartments (P) Ltd., 2005(9) SCC 262 and (vi) Chandi Prasad and others v. The Additional District and Sessions Judge, Hapur and others, 2001(43) ALR 441. 15. I have heard learned counsel for the parties and considered their respective submissions. 16. I find helpful to start with Section 28 of the Specific Relief Act,1963.It reads as under : “28. 15. I have heard learned counsel for the parties and considered their respective submissions. 16. I find helpful to start with Section 28 of the Specific Relief Act,1963.It reads as under : “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.” 17. Section 28 of the Act, 1963 is a corresponding provision of Section 35 (c ) of the Specific Relief Act (Repealed Act, 1877) (for short Repealed Act). Under the Repealed Act the vendor or lessor could bring a separate suit for rescission of the contract but Section 28 of the Act, 1963 gives right to vendor to seek rescission of contract in the same suit, after the suit for specific performance is decreed and plaintiff fails to pay the purchase money within stipulated period. The intention of the Legislature is obvious that the multiplicity of the proceedings may be avoided as there is no need to file a fresh suit. 18. The provisions of Section 28 came to be considered by the Supreme Court in a series of cases. In the case of Sardar Mohar Singh v. Mangilal; (1997 ) 9 SCC 217, the Court held that if executing Court had exercised discretion and extended time there is no illegality because principle of Section 5 of the Limitation Act is not applicable. The Executing Court has power to extend the time. The Supreme Court held as under: “4. 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 nor 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 is executed in execution of the decree, the trial Court retains its power and jurisdiction to deal 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, inspite of an application for rescission of the decree having been filed by the judgment-debtor and rejected. In other words, the Court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. In other words, the Court has the 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 observation of the Supreme Court In the case of Babu Lal v. Hazari Lal Kishori Lal, (1982) 1 SCC 525 , is worth noticing : “29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by the High Court.” 19. What emerges from the aforesaid judgments is that after passing the decree for specific performance the Court does not cease to have jurisdiction, it retains control over the decree even after the decree has been passed. The decree of specific performance is a preliminary in nature and trial Court retain its power and jurisdiction to deal with the decree of specific performance. It has also the power to extend the time for compliance of the decree. 20. In the case in hand during the pendency of the suit filed by the vendee the vendor executed the sale-deed in favour of the petitioner. He was impleaded in the suit after execution of the sale-deed. The judgment and decree of the trial Court was challenged by both vendor and the petitioner by two separate appeals and their appeals were dismissed by a common judgment by the learned District Judge. The petitioner alone carried Second Appeal to this Court which also came to be dismissed on 19.3.2012. The judgment and decree of the trial Court was challenged by both vendor and the petitioner by two separate appeals and their appeals were dismissed by a common judgment by the learned District Judge. The petitioner alone carried Second Appeal to this Court which also came to be dismissed on 19.3.2012. After the dismissal of the petitioner’s Second Appeal the vendee/respondent No. 2 herein moved an application for deposited the remaining amount of Rs. 2,65,000/- which he deposited on 2nd May,2012. Both the Courts below while deciding the application of the petitioner under Section 28 of the Act, 1963 have exercised their discretion and did not find that there was any delay on the part of the vendee/respondent No. 2. The Supreme Court in the case of Chanda (dead) through LRS v. Rattni and another (supra) has held that power under Section 28 of the Act, 1963 is a discretionary and the Court cannot ordinarily annul the decree once passed by it. 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 stands dismissed. 21. In the case in hand no such date and condition was mentioned by the trial Court that in the failure of the deposit/payment of remaining amount, the suit of the vendee shall stand dismissed. This aspect has been considered by both the Courts below. 22. Learned counsel for the petitioner has placed much emphasis on the case of Bhupendra Kumar v. Angrej Singh (supra). In the said case an agreement was executed on 20.11.1990 for the sale consideration of the property. As per the agreement the sale was to be executed and registered on or before 20.5.1991. the vendor received Rs. 20,000/- as earnest money. When the vendor failed to execute the sale-deed within the stipulated period the suit was filed by the vendee which was decreed with costs vide judgment and order dated 13.10.1998 with liberty to vendee to get the sale-deed executed and registered through the Court. As the vendee failed to get the sale-deed executed he moved an application for extension of time to deposit the balance of sale price in the Court. As the vendee failed to get the sale-deed executed he moved an application for extension of time to deposit the balance of sale price in the Court. In his application no sufficient cause was mentioned to justify his inability in making the payment/deposit the amount within stipulated period. The application of the vendee and the execution application was rejected under Section 28 of the Act, 1963. The facts of the said case is not applicable in the case in hand. In the said case on 13.10.1998 three months time was granted to the vendee to deposit the remaining amount and to get the sale-deed executed in his favour. After a lapse of three years the vendee moved an application for extension of time without disclosing any sufficient cause. In vew of the said fact the Supreme Court refused to interfere in the matter. The Court observed as under : “Paragraph 16. Though the Court has the power to extend time in favour of the decree-holder to pay the amount as directed or perform the conditions mentioned in the decree in the absence of plausible reasons, the executing Court had dismissed the plaintiff’s application for extension of time and also allowed the application filed by the judgment debtor for rescission of the contract under Section 28 of the Act.” 23. In the case of Ramankutty Guptan v. Avara (supra) case suit for specific performance was decreed and vendee was granted time to make the balance consideration within one month from the date of judgment and order of the trial Court. The vendee had committed default as he failed to deposit the amount within one month. The judgment-debtor filed a petition in the executing Court to rescind the contract on the ground that the plaintiff had committed default. The executing Court dismissed the application on the ground that the deposit was made within time. It was also contended by the judgment-debtor that the application of the decree holder/vendee for extension of time in executing Court was not maintainable. Such application could be filed on the original side and not before the executing Court. The contention of the judgment-debtor was rejected and the Court was of the view that the application for extension of time was maintainable on the execution side. The revision filed in the High Court was also dismissed. Such application could be filed on the original side and not before the executing Court. The contention of the judgment-debtor was rejected and the Court was of the view that the application for extension of time was maintainable on the execution side. The revision filed in the High Court was also dismissed. The Supreme Court refused to exercise its jurisdiction under Article 136 of the Constitution and held that the application was maintainable in the executing Court under Section 28(1) of the Act, 1963 as it was open to the Court to exercise the power under Section 28(1) of the Act, 1963 either for extension of time or for rescinding the contract as claimed for. The said case is of no assistance to the petitioner in this case in hand. 24. In the case of Chanda (dead through LRS. v. Rattni and another (supra) case an agreement was executed on 25.3.1989 to sell the land to the vendee. The vendor received Rs. 56,000/- as earnest money. The sale-deed was to be executed on or before 15.6.1989 on the payment of the outstanding amount. The vendeor refused to execute the sale-deed within the time specified. The vendee was constraint to institute a suit on 24.1.1990 for specific performance of the agreement to sale. On 1.5.1992 the suit was decreed and two months time was granted from the date of decree for the payment of the balance amount and the vendor/defendant were directed to execute the purposed sale-deed on payment of the said amount. The vendee failed to deposit the balance sale price within two months and after five months he moved an application for execution of the decree and a further prayer was made to allow to deposit the balance sale price in the Court. In the meantime an application for impleadment was filed by one Sarup Singh on the ground that he was owner in possession of the suit land on the basis of the decree dated 26.7.1991. His application for impleadment was allowed. Thereafter Sarup Singh filed an objection to the execution application which was dismissed on the ground that he was not a bona fide purchaser of the suit land. On 8th September, 1998 the vendor/judgment-debtor moved an application under Section 28 of the Act, 1963 with a prayer that agreement to sale be rescinded since the vendee/decree holder failed to deposit the balance amount within stipulated period. On 8th September, 1998 the vendor/judgment-debtor moved an application under Section 28 of the Act, 1963 with a prayer that agreement to sale be rescinded since the vendee/decree holder failed to deposit the balance amount within stipulated period. His application to rescind his application under Section 28 of the Act, 1963 was allowed by the trial Court which rescinded the original contract dated 25.3.1989 on the ground that the vendee had failed to deposit the balance sale consideration within time granted by the Court. Consequently the execution application field by the vendee was also dismissed. The facts of this case has also no application to the present case. 25. In the above case the vendee did not deposit the amount and after the lapse of stipulated period he moved a simple application to allow him to deposit the balance amount which he never deposited and his application remained pending. Pending consideration of the application the vendor moved an application under Section 28 of the Act, 1963 which was allowed as the vendee by that time had failed to deposit the balance amount. 26. After careful consideration of the facts and circumstances of the case and the submissions advanced by learned counsel for the parties I am of the view that the trial Court as well as the appellate Court for the aforestated reasons have exercised their discretion on the sound principle of the law in rejecting the application under Section 28 of the Act, 1963. I find that there is no error in exercising their discretionary power in the facts and circumstances of the case. 27. Therefore, in my opinion no interference under Article 226 of the Constitution is warranted. 28. Accordingly writ petition is dismissed. 29. The parties shall bear their own costs.