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2024 DIGILAW 1090 (KER)

Krishnan Ezhuthassan (Died), S/o. Vadakkoot Nelliparambil Raman Ezhuthassan v. Joseph, (Died, Lrs Impleaded) S/o. Mambra Kurian

2024-09-02

KAUSER EDAPPAGATH

body2024
ORDER : (Kauser Edappagath, J.) : These revision petitions have been filed challenging the common order passed by the IInd Additional Sub Court, Thrissur (for short, “the trial court”) in IA Nos. 4636/1999, 3842/1999, and 4374/1999 in OS No. 1221/1993. 2. The suit was one for specific performance of a contract. The property involved in the suit, having an extent of 34 Acres, admittedly belonged to the defendants 1 to 8. As per Ext.B1 sale agreement, defendants 1 to 8 agreed to sell the property to the plaintiff and the 10th defendant jointly for a consideration calculated @ Rs.822.50 per cent. Since the defendants failed to perform their part of the contract, the plaintiff instituted the suit. The suit was decreed as per the judgment dated 19/6/1999. There was no appeal, and the decree has become final. The decree is as follows: “a) Defendants 1 to 8 are directed to execute sale deed in respect of plaint schedule property jointly in favour of plaintiff and 10th defendant after getting balance sale consideration of Rs.23,51,196.20. b) If the defendants 1 to 8 fail to execute sale deed after receiving balance sale consideration within a period of one month from this date, plaintiff and 10th defendant are allowed to deposit balance sale consideration before this Court within one month from the date of default and get the sale deed executed through court. c) If the 10th defendant is not remitting the balance sale consideration within the period, plaintiff is allowed to remit the entire balance sale consideration before the Court within three months and get the sale deed executed in his name by defendants 1 to 8.” 3. The plaintiff or the 10th defendant did not deposit the balance sale consideration within the stipulated period. Defendant Nos. 1 to 8 filed IA No.4374/1999 on 3/9/1999 to rescind the contract. The 10th defendant filed IA No.3842/1999 on 2/8/1999 seeking permission to deposit the entire balance sale consideration. The plaintiff filed IA No.4636/1999 on 17/9/1999 seeking two months' time for making payment of his share of balance consideration. The 10th defendant deposited the balance sale consideration of Rs.23,51,196.20 before the trial court on 13/3/2000. However, later, he withdrew half of the amount as per the direction of this court in CRP No.1064/2005 dated 20/12/2005. The trial court, after hearing both sides, initially allowed IA No.4374/1999 and dismissed IA No.3842/1999 and IA No.4636/1999. The 10th defendant deposited the balance sale consideration of Rs.23,51,196.20 before the trial court on 13/3/2000. However, later, he withdrew half of the amount as per the direction of this court in CRP No.1064/2005 dated 20/12/2005. The trial court, after hearing both sides, initially allowed IA No.4374/1999 and dismissed IA No.3842/1999 and IA No.4636/1999. Against the order passed in IA No. 4374/1999, the plaintiff preferred CRP No.2144/2000 and the 10th defendant preferred CRP No.1454/2000 before this Court. Challenging the order passed in IA No.4636/1999, the plaintiff preferred CRP No.506/2002 and challenging the order passed in IA No. 3842/1999, the 10th defendant preferred CRP No.1419/2000 before this Court. Those revision petitions were disposed of by this court by a common order dated 10/1/2002 remitting the matter to the trial court to consider the applications afresh. After remand, this Court allowed IA Nos.4636/1999 and 3842/1999 and dismissed IA No.4374/1999. Those orders were again challenged before this court. This court set aside the orders of the trial court and again remanded the matter to the trial court for fresh disposal. The trial court considered all the three applications together and dismissed IA No.4374/1999 and allowed IA Nos.4636/1999 and 3842/1999 vide common order dated 06/02/2003. The petitioner/plaintiff in IA No.4636/1999 was given 15 days’ time to deposit the balance sale consideration. Challenging the common order, the defendant Nos. 1 to 8 preferred CRP Nos.1270, 1292 and 1293/2003 and challenging the order in IA Nos. 4636/1999 and 3842/1999, the plaintiff preferred CRP Nos.1621 and 1799/2003. 4. The plaintiff, 1st defendant and 10th defendant in the suit died pending revision petitions and their legal heirs were impleaded in the revision petitions. 5. During the pendency of the revision petitions, one Mr.K.O.Rappai filed IA No.1/2024 in CRP No.1270/2003, IA No.1/2024 in CRP No.1292/2003, IA No.1/2024 in CRP No.1293/2003, IA No.1/2024 in CRP No.1621/2003 and IA No.1/2024 in CRP No.1799/2003 to get himself impleaded as the additional respondent. It is alleged that the legal heirs of the 10th defendant, who expired during the pendency of the revision petitions, released their right over the property in favour of one Mohammed Shajahan, one of the legal heirs of the 10th defendant, as per the release deed No.332/2012 of SRO Wadakkanchery and thereafter, Sri. It is alleged that the legal heirs of the 10th defendant, who expired during the pendency of the revision petitions, released their right over the property in favour of one Mohammed Shajahan, one of the legal heirs of the 10th defendant, as per the release deed No.332/2012 of SRO Wadakkanchery and thereafter, Sri. Mohammed Shajahan assigned the right of the 10th defendant as per the judgment and decree in OS No.1221/1993 devolved upon him in his favour as per document No.448/2014 dated 19/11/2014 of Wadakkancherry SRO. According to him, thus he is entitled to get the plaint schedule property registered in his name. The said applications were allowed, and he was impleaded as an additional respondent in the five revision petitions mentioned above. 6. The petitioners in CRP No.1621/2003 filed IA No.2/2024 seeking an extension of the time to deposit 50% of the balance consideration payable in pursuance of the decree dated 19/6/1999. 7. Since all the revision petitions are connected, I am disposing of the same by a common order. I refer to the status of the parties in this order as they are shown in the suit, i.e., the plaintiff and the defendants. 8. I have heard Sri. V.V. Asokan, the learned Senior Counsel for the plaintiff's legal heirs, Sri.D.Anilkumar, the learned counsel for defendants 1 to 8; Sri.T.Sethumadhavan, the learned Senior Counsel for the legal heirs of the 10th defendant; and Sri.K.B.Gangesh, the learned counsel for the transferee/assignee of the 10th defendant. 9. Sri.V.V.Asokan, the learned Senior Counsel for the legal heirs of the plaintiff submitted that the court has the power to extend the time to pay the balance consideration or perform the conditions of the decree for specific performance despite the application for rescission of the contract and since the plaintiff offered sufficient reason for not depositing the amount in time, the trial court rightly granted the extension. Sri.Sethumadhavan, the learned Senior Counsel for the legal heirs of the 10th defendant, submitted that the 10th defendant had filed an application for enlargement within the time prescribed in the decree and deposited the entire balance consideration shortly thereafter. On the other hand, the learned counsel for defendant Nos. 1 to 8 Sri.D.Anil Kumar submitted that the plaintiff did not deposit the balance sale consideration at all for more than twenty years and the 10th defendant made the deposit out of time. On the other hand, the learned counsel for defendant Nos. 1 to 8 Sri.D.Anil Kumar submitted that the plaintiff did not deposit the balance sale consideration at all for more than twenty years and the 10th defendant made the deposit out of time. Hence, the trial court ought to have rejected the pleas for enlargement of time and rescinded the contract. 10. Section 28 of the Specific Relief Act, 1963 (for short, the “Act”) gives power to the court either to extend the time for compliance with the decree for specific performance of a contract for the sale or lease of immovable property or grant an order of rescission of the contract in certain circumstances despite the decree. These powers are available to the trial court that passes the decree of specific performance. As the challenge to the impugned order revolves around the provisions of S.28 of the said Act, let me examine the scope of the said provision in detail. Section 28 of the Act 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." 11. A perusal of the above provisions show that the trial court does not lose its jurisdiction after the grant of the decree for specific performance, nor does it become functus officio. The decree for specific performance is in the nature of a preliminary decree; the suit is deemed to be pending even after the decree, and it comes to an end only when all the appropriate reliefs to which the parties are entitled are worked out and granted. The trial court is clothed with the powers to grant certain reliefs to the parties enumerated under sub-sections (1) to (3) of Section 28 even after passing the decree for specific performance. The trial court is clothed with the powers to grant certain reliefs to the parties enumerated under sub-sections (1) to (3) of Section 28 even after passing the decree for specific performance. Sub-section (1) enables the Court to extend the period for payment of the purchase money if it has not been paid within the period allowed by the decree. It also enables the judgment debtor to seek to rescind the contract for non - compliance with the directions given in the decree. To invoke the said provision, the person who has obtained a decree for specific performance ought to have failed to pay the money or other sum which the Court has ordered him to pay, within the period allowed by the decree or such further period as the Court may allow. In such an event, the person who has suffered the decree has a right to apply to the Court in the same suit in which the decree was passed to have the contract rescinded. On such an application being made, 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. However, the non-payment of the balance sale consideration within the time period fixed by the trial court does not amount to abandonment of the contract and consequent rescinding of the same. There must be an element of wilful default on the part of the purchaser for the court to invoke Section 28 and rescind the contract. Once such an order for rescission of the contract is made, the Court 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 also may direct payment to the vendor or lessor, to pay the rents and profits which have accrued in respect of the property from the date on which possession was 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 or earnest money or deposit in connection with the contract [Sardar Mohar Singh v. Mangilal alias Mangtya, (1997) 9 SCC 217 ; Bhupinder Kumar v. Angrej Singh, (2009) 8 SCC 766 ]. 12. 12. Coming to the merits of the case, the decree directs the plaintiff and the 10th defendant to deposit their share of the balance sale consideration within one month. The plaintiff was allowed to remit the entire balance sale consideration within three months and to get the sale deed executed in his name in the event the 10th defendant fails to remit his share. The decree was passed on 19/06/1999. The 10th defendant filed IA No.3842/1999 on 2/8/1999 seeking permission to deposit the entire balance sale consideration and deposited the same before the trial court on 13/3/2000. Later, he withdrew half of the amount as per the order of this Court. The plaintiff filed IA No.4636/1999 on 17/9/1999 seeking two months' time for making payment of his share of balance consideration. The said application was initially dismissed by the trial court, holding that balance consideration was not deposited even after the lapse of six months, though the time sought in the application was only two months. When the plaintiff filed a revision before this court, challenging the said order, or when the application was remanded by this court to the trial court for fresh disposal, the plaintiff did not care to deposit his share of balance consideration. Ultimately, the impugned order was passed on 06/02/2003, allowing the application for extension of time filed by the plaintiff (IA No.4636/1999), granting him 15 days’ time to deposit the balance sale consideration. Instead of complying with the said order and depositing the balance consideration as directed, curiously, the plaintiff has chosen to challenge the said order, which was completely in his favour, in revision before this court (CRP No.1621/2003). 13. The power which is entrusted to the court under Section 28 of the Act is equitable in nature and it is open to the court to grant additional time for the performance of any condition laid down in the decree. In deciding an application under S.28(1) of the Act, the court must see all the attending circumstances including the conduct of the parties [Bhupinder Kumar (supra)]. It is true a mere failure on the part of the decree-holder to deposit the amount does not render the decree ineffective or release the Judgment debtor from his liability to satisfy the decree. In deciding an application under S.28(1) of the Act, the court must see all the attending circumstances including the conduct of the parties [Bhupinder Kumar (supra)]. It is true a mere failure on the part of the decree-holder to deposit the amount does not render the decree ineffective or release the Judgment debtor from his liability to satisfy the decree. It is only when there is wilful default on the part of the decree-holder to make the deposit that the Court would be justified in refusing an extension of time and order rescission of the contract. The real test must be to see if the conduct of the plaintiff will amount to a positive refusal to complete his part of the contract. Admittedly, the plaintiff or his legal heirs did not deposit his share of the balance sale consideration even today, though more than twenty-five years have elapsed since the date of the decree. No explanation is forthcoming as to why the balance amount of consideration could not be deposited within the time granted by the Court. The extension sought in IA No.4636/1999, filed on 17/09/1999, was only two months. The said application was allowed ultimately on 06/02/2003 granting fifteen days’ time to deposit the balance sale consideration. Though the plaintiff got more than three years as against his request of two months, he still did not make the payment but chose to challenge the order in revision before this court. The revision has been pending for the last twenty-one years. He did not make the payment till this date. Thus, wilful default on the part of the plaintiff is evident in this case. Equity demands that discretion not to be exercised in favour of the plaintiff and that no extension of time be granted to him to comply with the decree. At the same time, the 10th defendant filed the application seeking the extension within time and deposited the balance consideration without much delay. Hence, the discretion to extend the time for compliance with the decree for specific performance must be exercised in favour of the 10th defendant. 14. A Court granting a decree for specific performance has a corresponding obligation to ensure that the vendor receives the balance sale consideration within a reasonable period. Hence, the discretion to extend the time for compliance with the decree for specific performance must be exercised in favour of the 10th defendant. 14. A Court granting a decree for specific performance has a corresponding obligation to ensure that the vendor receives the balance sale consideration within a reasonable period. As stated already, whenever, in any suit, a decree for specific performance has been passed and the purchaser does not pay the amount within the period allowed by the Court, the vendor has been given a statutory right under Section 28 of the Act to apply for rescission of the contract. This right is a valuable right conferred by the statute in favour of the vendor. As in the case of a decree for specific performance where equity weighs with the court, so is the situation in considering an application under Section 28 for rescinding the contract. Justice must be done in terms of equity and fairness [Rajinder Kumar v. Kuldeep Singh, (2014) 15 SCC 529 ]. If an order for payment of the balance money is disobeyed, the Court, which acted in equity, has the bounden obligation to ensure that justice is done to the vendor and the contract is rescinded. As the balance consideration was not deposited even within the extended time, and no cause was shown for why the deposit was not made, the trial court ought to have ordered the rescission of the contract against the plaintiff. The rescission of the contract in part as against the contracting party in default is permissible in law. Sub-section (1) of Section 28 gives power to the trial court to rescind the contract as regards the party in default, or altogether, as the justice of the case may require. 15. Sub-section (3) of Section 28 of the Act clearly provides that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to. Clause (b) of sub-section (3) of Section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. As the contract against the plaintiff alone is found to be rescinded, defendants Nos. Clause (b) of sub-section (3) of Section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. As the contract against the plaintiff alone is found to be rescinded, defendants Nos. 2 to 8 and the legal heirs of the 1st defendant can be directed to execute the sale deed in respect of one-half share in favour of the 10th defendant or his assignee after partitioning the decree schedule property into two equal shares invoking Section 28(3) of the Act. 16. The learned counsel for the plaintiff as well as the defendant Nos.1 to 8 submitted that this Court could not grant relief of partition and separate possession in execution application in excess of and outside the framework of the prayer in the original main suit. They laid emphasis on sub-section (2) of Section 22 of the Act to contend that the plaintiff, having not claimed any relief for partition and separate possession in the plaint, the court cannot grant the said relief at the execution stage. I cannot subscribe to the said argument for the following reasons. 17. Section 22 of the Act as it stands after the amendment of 1963, reads thus : "22-Power to grant relief for possession, partition, refund of earnest money, etc – (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908) any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under Cl. (a) or Cl. (b) of sub-sec. (1) shall be granted by the Court unless it has been specifically claimed : Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the Court to grant relief under Cl. (3) The power of the Court to grant relief under Cl. (b) of sub-section (1) shall be without prejudice to its powers to award compensation under S.21." The above provision enacts that a person in a suit for specific performance of a contract for the transfer of immovable property may ask for appropriate reliefs, namely, possession or partition or for separate possession, including the relief for specific performance. Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in the plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid a multiplicity of suits so that the plaintiff may get appropriate relief without being hampered by procedural complications. The argument of the learned counsel that the relief for possession or partition must be claimed in a suit for specific performance of a contract in all cases ignores the significance of the expression 'in an appropriate case' in sub-section (1) of Section 22. The expression indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for the specific performance of a contract for the transfer of the immovable property. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case'. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession or partition or separate possession over the property conveyed under the sale deed. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession or partition or separate possession over the property conveyed under the sale deed. The use of the expression ‘further relief’ in sub-section (3) of Section 28 is a clear pointer that reliefs by way of delivery of possession or partition and separate possession of the property are ancillary and consequential to the passing of a decree for specific performance of a contract for sale of immovable property and can be granted at the execution stage notwithstanding the prohibition contained in sub-section (2) of Section 22. Thus, when a decree for the specific performance of a contract for sale is put for enforcement, the court is competent to order partition and separate possession of the property under sub-section (3) of Section 28 of the Act even though the decree did not provide for partition and separate possession. The Court, when allowing the prayer for a specific performance, vests the executing Court with all the powers which are required to give full effect to the decree for a specific performance. By the decree for specific performance, the Court sets out what it finds to be the real contract between the parties and declares that such a contract exists, and it is for the executing Court to do the rest. It must be noticed further that a decree in a suit for specific performance has been considered to be somewhat in the nature of a preliminary decree, which cannot set out in the fullest detail all the different steps which are required to be taken to implement the main portion of the order directing specific performance of the contract. The Court that executes the decree is, in such a case, vested with the authority to issue necessary directions (See Babu Lal v. M/s Hazari Lal Kishori Lal and Others, AIR 1982 SC 818 ). 18. It has been brought to the notice of this court that the remaining legal heirs of the 10th defendant released their right over the property in favour of one of the legal heirs, namely Mohammed Shajahan as per the release deed No.332/2012 of SRO Wadakkanchery and thereafter, Sri. 18. It has been brought to the notice of this court that the remaining legal heirs of the 10th defendant released their right over the property in favour of one of the legal heirs, namely Mohammed Shajahan as per the release deed No.332/2012 of SRO Wadakkanchery and thereafter, Sri. Mohammad Shajahan assigned the right of the 10th defendant over the property as per the judgment and decree in OS No.1221/1993 devolved upon him in favour of Mr.K.O.Rappai (who was impleaded as an additional respondent in revision petitions) as per document No.448/2014 dated 19/11/2014 of Wadakkancherry SRO. 19. Section 2(3) of CPC defines "decree-holder" as meaning "any person in whose favour a decree has been passed or an order capable of execution has been made". Section 51 says that the Court may, on the application of the “decree-holder”, order execution of the decree by various methods. Order XXI Rule 10 provides that where the “holder of a decree” desires to execute it, he shall apply to the Court which passed the decree. Though the terms “decree holder” and “holder of a decree” appear synonymous, they carry distinct legal meanings. The term “holder of a decree” used in Order XXI Rule 10 is a broader term encompassing not only the decree holder defined in Section 2(3), but also the representative of the decree-holder. The term also includes transferee or assignee of the decree. Order XXI Rule 16 enables a transferee to apply for the execution of the decree. It says that where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. The first proviso to Order XXI Rule 16 enjoins that notice of such application shall be given to the transferor and the judgment-debtor and that the decree shall not be executed until the Court has heard their objections, if any, to its execution. The provision of Rule 16 is enabling in nature. The first proviso to Order XXI Rule 16 enjoins that notice of such application shall be given to the transferor and the judgment-debtor and that the decree shall not be executed until the Court has heard their objections, if any, to its execution. The provision of Rule 16 is enabling in nature. It confers a right on the transferee or assignee of the decree if he so desires to substitute himself in the place of the original decree-holder in execution proceedings. It, however, neither compels the transferee of the decree-holder to execute the decree nor prevents or creates a bar to execute the decree by the decree-holder. In other words, the rule is an optional provision. Explanation of the Rule makes it clear that the Rule will not affect Section 146 of CPC, and a transferee of rights in the property, may apply for execution of the decree without a separate assignment of the decree. Section 146 provides that where any proceeding may be taken or application made by or against any person, then the proceeding may be taken, or the application may be made by or against any person claiming under him. The transfer as between the legal heirs of the 10th defendant and the transferee is affected by the deed of assignment. The document No.448/2014 dated 19/11/2014 of Wadakkancherry SRO produced by the transferee would show that the rights of the 10th defendant in the property, as well as the decree, have been assigned in favour of the transferee. The legal heirs of the 10th defendant admit the transfer. The transferee would, thus, step into the shoes of the transferor by virtue of the assignment in writing executed by the transferor in his favour. The transferee, Mr. K.O.Rappai, could, therefore, execute the decree under Order XXI Rule 16 of the CPC. 20. The upshot of the above discussion is that defendant Nos.2 to 8 and the legal heirs of the 1st defendant are entitled to get the contract rescinded in part against the plaintiff regarding his half share over the property and are liable to execute the sale deed in favour of the assignee/transferee of the 10th defendant regarding the remaining half share. The decree-schedule property consists of 34 Acres of land. The decree-schedule property consists of 34 Acres of land. It is easily possible to make a physical division of the property into two shares and to allot one such share to the assignee/transferee of the 10th defendant. Inasmuch as the decree in a suit for specific performance for sale is in the nature of a preliminary decree, the trial court can very well be directed to effect physical division of the property by metes and bounds into two equal shares by deputing an advocate commissioner and to get the sale deed executed in favour of the assignee/transferee of the 10th defendant of the plot allotted to his share. Where a contract is rescinded under sub-section (1) of Section 28 of the Act, if the justice of the case so requires, the Court can as provided under Section 28 (2)(b) of the Act order for refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. Similarly, Section 65 of the Contract Act of 1872 also casts an obligation on the person who has received advantage under a void agreement or contract that becomes void to restore it, or to make compensation for it to the person from whom he received it. Therefore, defendant Nos.2 to 8 and the legal heirs of the 1st defendant are bound to refund the advantage/earnest money received from the plaintiff under the agreement, together with interest @ 12% p.a. from the date of receipt of the amount till the date of payment. In the light of the above findings, the Civil Revision Petitions are disposed as follows: (i) IA No. 4636/99 filed by the plaintiff stands dismissed. (ii) IA No. 4374/99 filed by the defendant Nos.1 to 8 stands allowed in part. The contract is rescinded in part against the plaintiff. (iii) IA No.3842/99 filed by the 10th defendant stands allowed. The trial court is directed to depute an advocate commissioner to partition the decree schedule property into two equal shares by metes and bounds and to allot one such share to the transferee/assignee of the 10th defendant, Mr.K.O.Rappai, and the remaining one share to the defendant Nos. 2 to 8 and the legal heirs of the 1st defendant. After the commissioner files the report, the trial court shall direct defendant Nos. 2 to 8 and the legal heirs of the 1st defendant. After the commissioner files the report, the trial court shall direct defendant Nos. 2 to 8 and the legal heirs of the 1st defendant to execute the sale deed in respect of the plot allotted to the transferee/assignee of the 10th defendant in his favour within a time frame in accordance with the law. If they fail to do so, the trial court will get the sale deed, as aforementioned, executed through the process of the court at the expense of defendant Nos.2 to 8 and the legal heirs of the 1st defendant. (iv) Defendant Nos.2 to 8 and the legal heirs of the 1st defendant shall refund the earnest money received from the plaintiff under the agreement together with interest @ 12% p.a. from the date of receipt of the amount till the date of payment. (v) The trial court shall suo moto implead the transferee/assignee of the 10th defendant, Mr.K.O.Rappai in IA No.3842/99. (vi) The parties shall appear before the trial court on 1/10/2024. (vii) The trial court shall complete the entire process within six months from the date of the receipt of a copy of this order.