1. The decree-holders/petitioners are aggrieved by order dated 11-9-2002 passed by Subordinate Judge, III, Patna City in Miscellaneous Case No. 21 of 2000 arising out of Title Execution Case No. 2 of 2000 whereby the decree for specific performance of contract passed in Title Suit No. 113 of 1995 has been rescinded in exercise of power under Section 28 of the Specific Relief Act, 1963 (hereinafter referred to as the Act).

2. The factual matrix necessary for disposal of the controversy between the parties is that the plaintiffs/petitioners filed the aforesaid Title Suit for specific performance of contract on the basis of agreement entered into between the parties for sale of immovable properties as described in Schedule-I of the plaint. The said suit was decreed on 20-12-1999 and the decree was signed on 6-1-2000. The Trial Court directed the defendants/opposite parties to execute the sale deed with regard to property described in Schedule-I of the plaint in favour of the decree-holders/petitioners on receipt of balance consideration money of Rs. 1,18,251/- within one month from the date of judgment i.e by 19-1-2000 failing which the decree-holders/petitioners will be entitled on deposit of balance consideration amount in the Court to get the sale deed executed and registered by the Court and entitled to get the possession of the suit property through the process of the Court.

3. The case of the plaintiffs/decree-holders/petitioners is that they approached the judgment-debtors/opposite parties within the aforesaid period to accept the balance consideration money and to execute and register the sale deed, but they avoided and hence they filed an Execution Case on 17-2-2000 for execution of the decree on payment of balance consideration money. In the said case on 3-6-2000, a petition was filed by the plaintiffs-decree-holders praying therein to grant permission to deposit the consideration money by challan which was allowed by the Court and in pursuance of that on 9-6-2000 they deposited the balance consideration by challan. Thereafter, the petitioners also submitted the draft of the sale deed on the basis of which a report was called for from the Sirestedar on the said draft and thereafter the draft was approved and as such they performed their part of contract.

4. It is admitted position that during pendency of the suit, the plaintiffs/petitioners have deposited the balance consideration money through the challan draft but the defendants/judgments-debtors/opposite parties did not accept the same and ultimately, the draft was withdrawn by the decree-holders/petitioners. Thus, according to the decree-holders, they were willing and ready to perform their contract up to the very beginning to the end but the defendants/judgment-debtors/opposite parties avoided to perform their part of contract and as such no case for rescission of contract was made out under Section 28 of the Act.

5. The case of the judgment-debtors/opposite parties on the other hand is that on 8-1-2000 they expressed their desire to the decree-holders/petitioners to perform their part of the contract but the decree holders did not agree to get the sale deed executed on the ground that they have no money. On 13-1-2000, they filed an application in the trial Court expressing their readiness and willingness to perform their part of the contract within the stipulated period. A copy of the said petition was not accepted by the counsel appearing for the decree-holders/petitioners, then the Court below directed for service of legal notice upon the decree-holders/petitioners and the legal notice was sent on 15-1-2000 which was received by the decree-holders, even then nothing was done within the stipulated period and accordingly a petition was filed to absolve the judgment-debtors from the liability of the contract. On 16-2-2000, the judgment-debtors filed a petition under Section 28 of the Act for rescission of the contract as the decree-holders had failed to deposit the balance consideration money and get the sale deed executed within the stipulated period. A copy of the said petition was served upon the decree-holders on 10-4-2000 through the special messenger and rejoinder was filed by the decree-holders and the assertion made therein was controverted by filing reply on 19-4-2000.

6. The Court below gave opportunities to both the parties to lead evidence with regard to their respective cases and after having found that the decree-holders did not deposit the consideration money within the stipulated period and did not pray for extension of time in terms of Section 28 of the Act and its story that he attempted the judgment-debtors to get the sale deed executed on payment of balance consideration money is not reliable and accordingly ordered for rescission of the contract and held that the decree is not executable.

7. Section 28 of the Act under which power has been exercised by the Court runs as follows:

“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 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 decrees 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 the lessee as earnest money or deposit in connection with the contract.

(3) If the purchaser of lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely,

(a) the execution of a proper conveyance or lease by the vendor or lessor;

(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease;

(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.

(5) The costs of any proceedings under this section shall be in the discretion of the Court.”

8. According to the said provision, if the purchaser has not paid the purchase money and other sums which has been ordered by a decree to be paid within the period allowed by the decree or such further period as extended by the Court, the contract may be rescinded on the application filed by the vendor either so far as regards the party in default or altogether, as the justice of the case may require. Under Section 28 of the Act even after the passing of the decree, the Court does not cease to have the jurisdiction. The trial Court retains the jurisdiction to deal with the decree for specific performance. It has power to enlarge the time in favour of the decree-holder to pay the amount or to perform other conditions mentioned in the decree for specific performance. It also empowers the judgment-debtor to file an application for rescission of contract in event of the happenings as mentioned in the aforesaid section.

9. The Apex Court in the case of Sardar Mohan Singh v. Mangilal alias Mangtya reported in 1997 (9) SCC 217, held in Paragraph 4 of the judgment as follows:

“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 in spite 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.”

10. The relief under the Specific Relief Act is an equitable relief, at the same time it is a discretionary one. The Court while considering the grant of relief has to take into consideration the equitable consideration with reference to the facts of the case and even there may be valid agreement for sale, no relief can be granted if the Court finds that the equity is not in favour of the person claiming the relief. The power to grant extension is vested in the trial Court but when the trial Court and the executing Court are the same, the application filed in the executing Court will be treated to be one filed in the main suit. [(See 1994 AIR SCW 1533 : (AIR 1994 SC 1699); (Ramankutty Guptan v. Avara), and AIR 1999 Supreme Court 918 (V.S Palanichamy Chettiar Firm v. C. Alagappan)].

11. The question in this case is as to whether any time was fixed for deposit of consideration money by the trial Court and if not, as to whether any prayer for extension of time was made or money was deposited within the reasonable time.

12. The Court below has held that no such application for extension was filed. No particular form is prescribed for making an application for time. Admitted fact is that a petition was filed on 3-6-2000 by the decree-holders (Ext.-C) praying therein to grant time to deposit balance consideration money and the same was allowed and thereafter money was deposited on 9-6-2000. In my view, the said application will be treated to be an application for extension of time that was filed before the executing Court which was also the trial Court and in pursuance of that money was deposited and draft sale deed was prepared and that was also approved. This apart, no time was fixed in the judgment and decree for deposit of consideration money nor any consequences was mentioned as a result of default in payment of consideration money. Only direction was to the judgment-debtor to execute the sale deed within one month from the date of judgment on receipt of balance consideration money. Even assuming that the plaintiffs/decree-holders should have deposited the balance consideration money within one month so that the judgment-debtors may execute the sale deed, no consequences were provided in case of default in the deposit of money and as such the Court has power to extend the period to deposit the money and the Court below having allowed the prayer for extension of time no case for rescission of contract was made out in the case specially when the materials on record clearly show that even during pendency of the suit, the plaintiffs/decree-holders were ready to deposit the balance consideration money and as a matter of fact, he filed the draft which was not accepted by the defendants then the amount was withdrawn.

13. The learned Munsif has relied upon certain petitions filed by the defendants/judgment-debtors within the stipulated period of one month to show that they were willing to perform his part of contract ignoring the denial of the aforesaid assertion of the decree-holders by filing rejoinder. The decree-holders had brought on record the receipt showing service of copy of rejoinder by registered post as well as under certificate of posting vide Exts. B and B/1, but the Court below on flimsy ground has rejected the aforesaid rejoinder which clearly indicate the conduct of the judgment-debtors in not performing their part of the contract. The Court below has committed jurisdictional error in arriving to the conclusion that the judgment-debtors did not get the sale deed executed within the stipulated period on payment of balance consideration money.

14. Accordingly, the impugned order passed by the Court below is set aside and the Court below is directed to proceed with the execution case as the decree-holders have already deposited the balance consideration money and draft of the sale deed has been approved.

15. In the result, the civil revision application is allowed.

Application allowed.