Rakesh Kumar Jain, J.@mdashThis petition is against the order dated 20.4.2001 passed by the Civil Judge (Jr. Division), Samrala by which an application filed by the judgment-debtor under Section 28 of the Specific Relief Act, 1963 (for short ''the Act'') for rescission of the contract has been dismissed. In brief, the plaintiff-decree holder filed a suit for specific performance of an agreement to sell dated 28.11.1996 in respect of 8 Kanals of land. Out of the total sale consideration of Rs. 1,10,000/-, the plaintiff paid Rs. 80,000/- as earnest money and the remaining sale consideration was to be paid at the time of execution and registration of the sale deed on 30.6.1997. The suit was decreed on 30.7.1999. The decree in the suit reads as under:--
"It is ordered that suit of the plaintiff succeeds and the same is decreed ex parte with costs for possession of the land measuring 8 Kanals 0 Marlas with all rights as detailed in the plaint. The defendant is directed to get the sale deed executed and registered within a period of two months from the date of receipt of the order on the payment of balance sale consideration."
2. Indubitably, the decree dated 30.7.1999 became final as no appeal was filed against it. According to the counsel for the petitioner, the certified copy of the judgment and decree was applied by the decree-holder on 7.8.1999. It was prepared on 30.8.1999 and delivered on 2.11.1999. The decree-holder deposited the balance sale consideration on 27.12.1999.
3. The petitioner filed an application under Section 28 of the Act for rescission of the contract on the ground that the balance sale consideration has not been paid within a period of two months as stipulated in the decree. However, the trial Court dismissed the application on the ground that the decree has been duly complied with by the decree-holder as the balance amount was paid within a period of two months from the date of receipt of the order of the trial Court.
4. Learned counsel for the petitioner has vehemently argued that the period of two months has to be counted from the date of preparation of the copy of the judgment and decree i.e. 30.8.1999 and since the balance sale consideration was deposited by the decree-holder on 27.12.1999, it was clearly beyond the period of two months and therefore, the contract between the parties stood rescinded in terms of Section 28 of the Act. Learned counsel for the petitioner has also referred to a decision of the Supreme Court in the case of
5. Learned counsel for the petitioner has contended that the decree for specific performance, in which time was granted for payment of balance sale consideration, has to be treated as a preliminary decree and if decree-holder fails to pay the amount within the time fixed by the Court in the decree, without seeking extension of time, the ultimate result would be rescission of the contract in terms of Section 28 of the Act.
6. I have heard learned counsel for the petitioner and examined the records with his able assistance. Before I advert to the facts of the present case, it would be relevant to refer to some provisions of the Code of Civil Procedure, 1908 (the CPC) and the Act. Decree for specific performance is provided in Order 20 Rule 12-A which reads as under:--
"Order 20 Rule 12-A Decree for Specific Performance of Contract for the sale or lease of immovable property- where a decree for the specific performance of the contract for the sale or lease of immovable property orders that the purchase money or other sum paid by the purchaser or lessee, it shall specify the period within which the payment shall be made."
7. Section 28 of the Act dealing with the rescission is also reproduced 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 the 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."
8. In the case of Chanda (Dead) through LRs (supra) relied upon by the learned counsel for the petitioner, decree was passed for performance of the agreement to sell on payment of balance sale consideration within a period of two months which was not deposited and also the judgment-debtor did not execute the sale deed. The plaintiff moved an application for the execution of the decree pleading that since the judgment-debtor-respondent has failed to execute the sale deed, the same be executed through the Court. The plaintiff has to pay the balance sale consideration in Court. The application was dismissed by the Executing Court on the ground that the plaintiff had failed to deposit the payment within the stipulated period. The revision filed against that order before the High Court was also dismissed observing that there was a condition in the decree for deposit of the balance sale consideration within two months which was not followed by the decree-holder. Before the Apex Court, it was argued by the plaintiff in that case that there was scope for extension of time and mere non-deposit will not deprive the plaintiff from getting the relief. Strong reliance was placed on the decision in the case of
9. On the other hand, the judgment-debtor had argued that the sale deed could have been executed only after the payment of balance sale consideration and since the decree-holder did not deposit the full amount, even for a period of six years, therefore, the application has rightly been dismissed.
10. On the aforesaid facts and circumstances, the Supreme Court in the case of Chanda (Dead) supra made the following observations:--
"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. The object is to avoid multiplicity of suits. Likewise under the present provision where the purchaser or lessee has paid the money, he is entitled in the suit for specific performance to the reliefs as indicated in sub-section (3) like, partition, possession etc. A suit for specific performance does not come to an end on passing of a decree and the Court which has passed the decree for specific performance retains the control over the decree even after the decree has been passed.
9. The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the j 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 suit to stand dismissed. The power exercisable under this Section is discretionary."
11. A similar view has been expressed in the case of Resham Singh (supra) and Bhupinder Kumar (supra).
12. But in the present case, the question involved is as to whether the period of two months is to be counted from 30.8.1999 when the copy of the order was prepared or from 2.11.1999 when it was delivered.
13. Counsel for the petitioner has argued that the limitation is to be counted from the date of preparation of the certified copy. There is no dispute with this proposition but in the present case the language used in the decree has to be interpreted in which a direction has been given to the defendant to get the sale deed executed and registered within a period of two months from the date of receipt of the order on the payment of balance sale consideration.
14. In view thereof, the period has to be counted not from the date of preparation of the copy but from the date of receipt of the order which is of course 2.11.1999 and since the balance sale consideration has been paid on 27.12.1999, therefore, it has to be held that it was within two months as directed in the decree dated 30.7.1999. In view of the aforesaid discussion, I do not find any error in the impugned order. Consequently, the present revision petition is hereby dismissed though without any order as to costs.
