IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRP.No. 757 of 2003() --------------------- OS.317/1996 of I ADDL.SUB COURT,THIRUVANANTHAPURAM .................... REVN. PETITIONER: PLAINTIFF --------------------------- SREEKUMAR, S/O.SADASIVAN, HINDU, AGED..., RESIDING AT "SREENILAYAM"SHANGUMUGHAM, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA RESPONDENT: DEFENDANT: ----------------------- SYLAJAKUMARI, D/O.VIJAYAMMA, HINDU LADY, AGED ..., RESIDING AT THEKKE OTTE VEEDU, VENGANOOR, VENGANOOR, THIRUVANANTHAPURAM. BY // THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 757 OF 2003 -------------------------------------------- Dated this the 3rd day of June, 2008 O R D E R The plaintiff in O.S. No.317 of 1996 on the file of the I Additional Sub Court, Thiruvananthapuram is the revision petitioner. The suit was filed for specific performance of an agreement of sale dated 2.1.1995. The suit was decreed in terms of the plaint on 16.10.1997. As per the decree, the defendant was directed to execute the sale deed in favour of the plaintiff in respect of the plaint schedule property within three months from the date of the decree on receipt of the balance sale consideration. The decree also provided that if the direction to execute the sale deed is not complied with by the defendant, the plaintiff will be allowed to get the sale deed executed through court by depositing the balance sale consideration. Since the defendant failed to comply with the first part of the decree, the plaintiff filed application for issuance of challan on 15.10.1999 for depositing the balance sale consideration of Rs.20,000/-. The said application was dismissed by the trial court stating that it was C.R.P. NO.757/2003 2 filed belatedly. 2. The trial court did not go into the merits of the case, the decree passed by the same court or the consequences of dismissing the challan application without considering the impact of such a dismissal. A one line order was passed dismissing the challan application leaving the plaintiff without any remedy inspite of the fact that he had obtained a decree for specific performance. 3. It is pointed out by the learned counsel appearing for the revision petitioner/plaintiff that the defendant in the suit had not entered appearance before any court including this Court and never chose to contest the matter on merits. Counsel drew my attention to the decision of the Supreme Court reported in Kumar Dhirendra Mullick & Others v. Tivoli Park Apartments (P) Ltd. (2005) 9 S.C.C. 262 wherein it is held as follows: "When the court passes the decree for specific performance, the contract between the parties is not extinguished. The 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 C.R.P. NO.757/2003 3 decree and the suit is deemed to be pending even after the grant of such decree. Hence, the court retains control over the entire matter even after the decree. Section 28 gives power to grant order of rescission of the agreement which itself indicates that till the sale deed is executed, the trial court retains its power and jurisdiction to deal with the decree of specific performance. Therefore, the court has the power to enlarge the time in favour of the decree-holder to pay the amount or to perform the conditions mentioned in the decree for specific performance." Counsel also cited the decision of the Supreme Court reported in K.Kalpana Saraswathi v. Somasundaram Chettiar (1980) 1 S.C.C. 630 and the decisions of this Court reported in Kumaresan v. Seshadri, 2002 (1)K.L.T. 565 and Chithambaran v. Viswambaran, 2002(2) K.L.T. 128 to canvass the position that it is the duty of the trial court to extend the time in a case in which a decree was passed for specific performance and that failure to deposit the balance amount in time is not a ground for dismissing the application filed for specific performance of the contract. It is also held in the above decisions that the court which passed the decree and fixed the time for payment has the power to enlarge the time as and when it is necessitated. The dismissal of the challan application without sufficient reason is, therefore, unsustainable in law. The court below is directed to reconsider the challan application and pass orders thereon. C.R.P. NO.757/2003 4 In the result, the Civil Revision Petition is allowed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.757/2003 5 HAURN-UL-RASHID, J. C.R.P. NO. 757/2003 O R D E R 3rd JUNE, 2008