THE HON’BLE SRI JUSTICE S. ASHOK KUMAR + C.R.P. Nos.4969 of 2007, 4990 of 2007, 5066 of 2007 & 5215 of 2007 % Date: 29-3-2010 C.R.P.No.4969 of 2007: Between: # Smt. Susheela Devi. …Petitioner. And: $ Maharshi Commerce Limited (Formerly known as Poddar Projects Ltd.,). Represented by its Managing Director, Vinod Poddar. …Respondent. ! Counsel for the petitioner: Sri Pratap Narayan Sanghi ^ Counsel for respondent: None appeared C.R.P.No.4990 of 2007: Between: # Smt. Susheela Devi. …Petitioner. And: $ Maharshi Commerce Limited (Formerly known as Poddar Projects Ltd.,). Represented by its Managing Director, Vinod Poddar. …Respondent. C.R.P.No.5066 of 2007: Between: # Smt. Susheela Devi. …Petitioner. And: $ Maharshi Commerce Limited (Formerly known as Poddar Projects Ltd.,). Represented by its Managing Director, Vinod Poddar. …Respondent. C.R.P.No.5215 of 2007: Between: # Smt. Susheela Devi. …Petitioner. And: $ Maharshi Commerce Limited (Formerly known as Poddar Projects Ltd.,). Represented by its Managing Director, Vinod Poddar. …Respondent. ! Counsel for the petitioners: Sri Pratap Narayan Sanghi ^ Counsel for respondents: Sri P.Venugopal. < GIST: >HEAD NOTE: ? Cases referred: 1. (1999) 4 SCC 702 2. AIR 1956 SC 359 3. AIR 2001 SC 2967 HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. Nos.4969 of 2007, 4990 of 2007, 5066 of 2007 & 5215 of 2007 … Dated 29-3-2010 C.R.P.No.4969 of 2007: Between: Smt. Susheela Devi. …Petitioner. And: Maharshi Commerce Limited (Formerly known as Poddar Projects Ltd.,). Represented by its Managing Director, Vinod Poddar. …Respondent. C.R.P.No.4990 of 2007: Between: Smt. Susheela Devi. …Petitioner. And: Maharshi Commerce Limited (Formerly known as Poddar Projects Ltd.,). Represented by its Managing Director, Vinod Poddar. …Respondent. C.R.P.No.5066 of 2007: Between: Smt. Susheela Devi. …Petitioner. And: Maharshi Commerce Limited (Formerly known as Poddar Projects Ltd.,). Represented by its Managing Director, Vinod Poddar. …Respondent. C.R.P.No.5215 of 2007: Between: Smt. Susheela Devi. …Petitioner. And: Maharshi Commerce Limited (Formerly known as Poddar Projects Ltd.,). Represented by its Managing Director, Vinod Poddar. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. Nos.4969 of 2007, 4990 of 2007, 5066 of 2007 & 5215 of 2007 … COMMON ORDER: C.R.Ps.4969 of 2007 and 4990 of 2007 are directed against the orders of the Court below in E.P.Nos.62 of 2003 and 63 of 2003, respectively. 2. C.R.Ps.5066 of 2007 and 5215 of 2007 are directed against the orders of the Court below in I.A.No.1965 of 2003 in O.S.No.1449 of 1989 and I.A.No.1964 of 2003 in O.S.No.1448 of 1989, respectively. 3. The respondent herein filed O.S.No.1448 and 1449 of 1989 in respect of 164.27 sq.yds. each of house bearing No.21-1-469 , Rikab Gunj, Hyderabad for Specific Performance and agreement of sale. The said suits covered different portions of the house property admeasuring 164.27 sq.yds. Both the said suits were decreed exparte on 8-4-1991. 4. The respondent herein filed E.P.Nos.62 of 2003 and 63 of 2003 on 4-4-2003. On receipt of notice of the said Execution Petitions, the petitioner herein-Defendant/Judgment Debtor, filed a counter in both the said E.Ps. and also filed applications in I.A.Nos.1965 of 2003 and 1964 of 2003 respectively under Section 28 (2) of the Specific Relief Act seeking rescission of the decree on the ground that the respondent-Decree Holder has failed to comply with the condition of the decree within the time prescribed. The Court below considered the petitioner’s objections to the E.Ps. as well as the application filed seeking rescission of the decree, together and passed a Common Order in the E.Ps. as well as I.A. seeking rescission of the decree, with respect to each of the said E.Ps . Hence, these four Revision Petitions are filed. 5. In these Revision Petitions, learned counsel for the petitioner Mr. Pratap Narayan Sanghi, has placed reliance upon Section 28 of the Specific Relief Act to contend that the respondent herein is not entitled to execute the decree as he has failed to comply with the conditions imposed in the decree and consequently, the petitioner is entitled to claim relief for rescission against the said decree under Section 28 (2) of the Act. He also submitted that the Executing Court has no power to go beyond the decree and a plain reading of the decree itself would show that the obligation imposed on the decree holder had not been fulfilled by the Decree holder within the time prescribed and consequently, by applying the provisions of Section 28 of the Specific Relief Act, the Executing Court ought to have disallowed the E.P. and ought to have allowed the petitioner’s applications in I.A.No.1965 and 1964 of 2003, respectively in each of the suits. 6. Learned Counsel has placed reliance upon the decisions reported in V.S. PALANICHAMY CHETTIARFIRM v. C.ALAGAPPAN AND ANOTHER ([1]) and JAI NARAIN RAM LUNDIA v. KEDAR NATH KHETAN AND ORS. ([2]) and contended that that the Executing Court does not become functus officio in so far as decree for Specific Performance is concerned and the jurisdiction of the Court in dealing with the decree of Specific Performance continues as under Section 28. It has power to enlarge the time as well as for performance of the conditions and similarly has also power to declare the decree as rescinded. 7. Per contra, the learned counsel for the respondent submitted that clause 1 of the decree imposed obligation on the petitioner-judgment debtor which he failed to fulfill and the obligations in any case, he has to fulfill. Under Clause 2 of the decree also, the direction against the plaintiff to deposit the amount was subject to the defendant/Judgment Debtor discharging his obligations and therefore, he submits that the obligation so far as the respondent-Decree Holder is concerned, are interlinked with the obligations to be discharged by the petitioner/Judgment Debtor and as such, it cannot be said that there is any default on the part of the respondent-Decree Holder. He further contends that the Court below has rightly noticed that the entire sale consideration was already paid by the petitioner and in view of the repeal of the provisions under Section 230 A of the Income Tax Act, the requirement of getting certification did not any more exist and as such, the respondent-Decree holder had rightly filed the E.P. within the limitation prescribed under Article 136 of the Limitation Act. He, therefore, submitted that the orders of the Court below do not warrant any interference. He has placed reliance upon the decision reported in ANTONYSAMI v. ARULANANDAM PILLAI ([3]) for the proposition that the limitation for Executing Decree would commence only on fulfillment of condition imposed in the decree. 8. I have considered the above said contentions. 9. The question that requires to be considered clearly falls within Section 28 of Specific Relief Act and Section 28 (1) in particular. 10. In Section 28 (1) in particular, the decision of the Supreme Court 1st cited above categorically settles legal position that: “the Court passing a decree for Specific Performance does not lose its jurisdiction after 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.” 11. In the present case, the decree directs as follows: “1. That the defendant is hereby directed and the plaintiff is hereby permitted to obtain clearance certificate from the income tax office, and Wealth Tax, Nil encumbrance certificate for over 30 years, and permission from the Urban Land Ceiling Authorities for the sale of the property, which is the subject matter of the suit and to file the same in this Court under intimation to the opposite party within two months from the date of this Judgment. 2. That the plaintiff be and is hereby directed to deposit into this Court costs of the stamp papers, expenses of registration and other incidental charges for the execution and registration of a sale deed for the suit schedule property within one month from the date of filing of clearance certificate and permission under intimation to the opposite party as aforesaid, or within three months from the date of this judgment, whichever is later and on such deposit, the defendant is directed to receive the same for the purpose of execution and registration of the sale deed. 3. That the defendant is hereby directed to execute and get registered a sale deed of the suit property in favour of the plaintiff or his nominee within one month from the date of deposit of the costs of stamp papers, expenses of registration and other incidental charges as aforesaid within four months from the date of this order whichever is later. 4. That in the event of default on the part of defendant in obtaining clearance certificate or permission or in the execution and registration of sale deed of the suit property as aforesaid, it would be open to the plaintiff to apply to this Court for such orders as may be necessary for obtaining the said clearance certificate or permission or for execution and registration of the sale deed of the suit property in accordance with law, and on such application this Court shall pass such orders as may be necessary in accordance with law” 12. It would be noticed from clause 2 of the above that while the directions to the plaintiff to deposit costs of the stamp papers, expenses of registration and other incidental charges are to be deposited within one month from the date of filing of the clearance certificate or permission which the Judgment Debtor would inform the decree holder. 13. Learned counsel for the respondent is right in contending that since the Judgment-Debtor has not obtained any permission or clearance, there was no direction thereof to the decree holder and consequently, the time limit of one month specified therein for depositing of amount did not arrive at all. The decision of the Supreme Court 1st cited above was cited before the trial Court but it has distinguished the same on the ground that the said case relates to the payment of balance of sale consideration and a reading of impugned order also gives an impression that the trial Court was of the opinion that Section 28 of the Specific Relief Act deals with the consequences of non-deposit of balance consideration alone. The latter part of Section 28 is conveniently omitted by the trial Court. It is therefore, necessary to extract Section 28 (1) of the Act and highlight that part of Section which is relevant in the present case. “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 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.” 14. For the above extract that the words “other sum which the Court has ordered him to pay” used in the above provision are completely lost sight of by the Court below. 15. Later part of direction two of the decree in the present case would show that the trial Court had decreed that the plaintiff must deposit the amount as directed in Clause 2 within three months from the date of judgment. Similar direction also is found in clause 3 of the decree where four months period is specified. The attention of the lower Court was not invited towards this part of decree as well as the purport of Section 28 (1) as mentioned above. 16. Learned counsel for the respondent is also unable to explain and it appears to me that the trial Court lost its attention to these aspects primarily on the impression that Section 28 (1) deals with only non-deposit of balance of sale consideration and consequences flowing out of the same. On account of the aforesaid, neither of the parties in respect of their respective cases nor the Court has considered from the stand point of compliance, if any, of each direction under the decree. In the circumstances, therefore, I am of the view that the impugned orders are liable to be set aside and the E.Ps. as well as application for rescission filed by the Judgment-debtor in each of the suits are required to be remitted to the executing Court for fresh disposal in accordance with law. 17. The C.R.Ps. are allowed and the E.Ps. and respective I.As. covered under the impugned order shall stand remitted to the Court below. 18. Both parties shall be at liberty to give evidence in respect of their cases, if they so desire and the trial Court shall consider the matter afresh and pass appropriate orders. 19. Accordingly, C.R.P. are allowed. No order as to costs. _____________________________________ Justice VILAS V. AFZULPURKAR Dated 29-3-2010. Note: L.R. copy to be marked. BO Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. Nos.4969 of 2007, 4990 of 2007, 5066 of 2007 & 5215 of 2007 Dated 29-3-2010 [1] (1999) 4 SCC 702 [2] AIR 1956 SC.359 [3] AIR 2001 SC 2967