Holding

An application under Section 28 of the Specific Relief Act is maintainable in the same suit, i.e., in the court of first instance even when the decree is passed by an appellate court, and the court retains jurisdiction to extend time or rescind the contract.

Summary

The appellant, a vendor, sought rescission of a contract of sale under Section 28 of the Specific Relief Act, 1963, alleging the respondent failed to pay the balance consideration within the time fixed by an appellate decree for specific performance. The decree, passed by the appellate court, was being executed in the court of first instance where the original suit was filed. The High Court dismissed the rescission application as not maintainable on the execution side. The Supreme Court examined whether "same suit" in Section 28 includes the appellate decree and whether the court retains jurisdiction to extend time or rescind the contract after decree. It held that the decree of the appellate court is deemed to be the decree of the court of first instance, and an application under Section 28 is maintainable in that court, not barred by procedural technicalities. Consequently, the Supreme Court dismissed the appeal, leaving the rescission application dismissed and the decree undisturbed.

Issues considered

Whether an application under Section 28 of the Specific Relief Act, 1963 is maintainable on the execution side when the decree for specific performance is passed by an appellate court.
Whether the phrase "same suit" in Section 28 includes the appellate court/decree and thus permits the original court to entertain the application.
Whether the court retains jurisdiction to extend time or rescind the contract after a decree for specific performance has been passed.
Whether the High Court erred in dismissing the application as not maintainable on the execution side.

Legislation cited

Code of Civil Procedure, 1908s. 37
Specific Relief Act, 1963s. 28

Subjects

Specific Relief ActSection 28Specific performanceRescissionExecution of decreeSame suitCourt jurisdictionArticle 136Contract of saleTime extension

Judgment

A RAMANKUTTY GUPTAN
v.
AVARA

FEBRUARY 3, 1994

B
(K. RAMASWAMY AND B.L. HANSARIA, JJ.]

Specific Relief Act, 1963: Section 28-Suit filed for recovery of balance
of consideration in a contract for sale-Decree passed by the Appellate
C Court-Application filed to rescind the contract of sale-Whether main-
tainable on the execution.

Words & Phrases: "Same Court"-Meaning of in the context of S. 28(1)
of the Specific Relief Act, 1963.

D Under a contract of sale the respondent was put in possession and
on failure of the vendor to execute the sale deed, the respondent filed a
suit for specific performance. The trial court dismissed the suit. On appeal
the appellate court granted the decree for specific performance. It also
granted one month's time to the respondent to deposit the balance con-
sidercttion. The appellant preferred a second appeal to the High Court.
E Respondent deposited the amount after the time fixed by the appellate
court but before the second appeal was dismissed.

While the decree was in execution the appellant filed a petition under
Section 28 of the Specific Relief Act, 1963 to rescind the contract of sale
p on the plea that l.he respondent had committed default in depositing the
balance consideration of Rs.4,351 within the time allowed by the appellate
court. The executing Court dismissed the application. The Revision peti- '
tion preferred to the High Court was also ·dismissed. The High Court held
that the application was not maintainable on the execution side. Hence this
G appeal.

The Respondent contended that the meaning of the word "same suit" ~--....
in s. 28(1) of the Act should not be construed to be the original court in
which the decree was made and so the application would lie for extension
of time, or for rescinding the contract, only in the appellate court and not
H in the trial court, that too on execution side.
542
(

RAMANKUITY v. AVARA 543

Dismissing the appeal, this Court A

HELD: 1.1. It is clear that the decree of the appellate court would be
construed to be the decree passed by the Court of first instance. It is settled
law that an appeal is a continuation of the suit. Therefore, when a decree
for specific performance has been dismissed by the trial court, but decreed
by the appellate court, it should be construed to be in the same suit. When
B
the decn:e specifies the time for performance of the conditions of the
decree, on its failure to deposit the money, section 28(1) of the Specific
Relief Act, 1963 itself gives power to the court to extend the time on such
terms as the court may allow, to pay the purchase money or other sum
which the court has ordered him to pay. An application for extension of C
time for payment of balance consideration may be filed even in the court
of first instance or in the appellate court in the same suit as the decree of
the trial court stands merged with that of the appellate court which decree
is under execution. It is to be seen that the procedure is the hand-maid for

- justice; and unless the procedure touches upon jurisdictional issue, it D
should be moulded to subservc substantial justice. Therefore technicalities
would not stand in the way to subserve substantive justice. Where the
decree is transferred for execution to a transferee executing court, then
certai~ly the transferee court is not the original court and execution Court
is not the "same court" within the meaning of s. 28 of the Act. But when an
application has been made in the court in which the original suit was filed E
and the execution is being proceeded with, then certainly an application
under section 28 is maintainable in the same court. [546-G-H, 547-A-E]

1.2. It is equally settled law that after passing the decree for specific
performance, the court does not cease to have any jurisdiction. The court F
retains control over the decree even after the decree has been passed. It
was open to the court to exercise the power under s. 28(1) of the Act either
for extension of time or for rescinding the contract as claimed for. Since
the execution application has been filed in the smae court in which the
original suit was filed, namely, the court of first instance, instead of
treating the application on the execution side, it could have as well been G
numbered as an interlocutory application on the original side and dis-
posed it of according to law. [547-F-G]

K Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar, [1980] 2
S.C.R. 29:i, relied on. H
544 SUPREME COURT REPORTS [1994) 1 S.C.R.

A Marnti Vishnu Kshirsagar v. Bapu Keshav Jadhav, (1970) A.I.R. Bom·
bay 398~ approved.

Ibrahim Shariff v. Masthan Shariff, (1967) 2 Andhra Weekly Reporter
60, at p.65, overruled.

B 2. In the instant case, the decree for specific performance became
final. While the second appeal was pending the balance consideration was
deposited and no steps have be taken to bring it to the notice of the High
Court that the respondent had committed default in compliance of the
appellate decree of depositing the balance consideration within the given
C time. Moreover, the respondent has been in possession of the land for
along time. The execution is on mid-way. Under these circumstances, no
interference called for, in exercise of power under Article 136, which in the
present case requires drawing of curtain. [548-B, C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 556 of
D 1994.
From the Judgment and Order dated 11.8.1992 of the Kerala High
Court in C.R.P. No. 593 of 1990.

G. Viswanatha Iyer and M.P. Vinod for the Appellant.
E
K.R. Nambiar for the Respondent.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. Leave granted.
F
1. The appellant judgment-debtor filed a petition in the executing
court to rescind the contract dated January 16-, 1976 on the plea that the
respondent-plaintiff had committed default in depositing the balance con-
sideration of Rs.4,351 within one month from January 27, 1982 made by
G the appellate decree in AS. No. 213 of 1979. The executing court dismissed
the application on the gi .Jund that the deposit was made within the time
though the application on the execution side was maintainable. On revision,
the High Court in C.R.P. No. 593/90 dismissed the petition by judgment
dated August .11, 1992 holding it not maintainable on the execution side.

H 2. The only question that arises for consideration is whether an
RAMANKUTIY v.AVARA[K.RAMASWAMY,J.) 545

application under s. 27 of the Specific Relief Act, 1 .963, for short 'the Act' A
is maintainable on the execution side in a decree passed in the same suit
by the appellate court. The facts are not in dispute. Under the contract of
sale the respondent was put in possession and on failure of the vendor to
execute the sale deed the respondent filed the suit for specific perfor-
mance. The trial court dismissed the suit. On appeal, while granting the B
decree for specific performance, the court granted one month time to
deposit the halance consideration: The appellant carried the matter in
Second Appeal to the High Court. The respondent deposited the amount
after the time fixed by the appellate court but before the Second Appeal
was dismissed. While the decree was in execution the appellant filed the
petition under s. 28 of the Act. The original suit and the execution applic- C
tion is in the same court.

Section 28(1) of the Act reads thus:

28". Rescission in certain circumstances of contract for the
sale of lease of immovable property, the specific perfor- D
mance 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
E
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 rescined and on such ap-
plication the court may, by order, rescind the contract F
either so far as regards the party in default or altogether,
as the justice of the case may require".

(Emphasis supplied)

3. A bare reading i.tself clearly mentions that in a suit a decree for G
specific performance of a contract for the sale of immovable property has
·+ been made and time has b'!en prescribed for performance, it should ·be
complied within time. On its default, power has been given to the court
that passed the decree to further extend the time as the cou!"t may allow
and the purchase mnney or any other sum be paid within the extended H
546 SUPREME COURT REPORTS [1994) 1 S.C.R.

A time.. If the payment is not made even within the time originally fixed or ~
extended time, what would be the consequences depends on the terms of
the decree with which we are not concerned in this appeal.

4. There appears to be difference of opinion among the High Courts
in this behalf. The Bombay High Court in Maruti Vishnu Kshirsagar v. Bapu
B Keshav Jadhav, (1970) A.LR. (Bombay) 398, held that the application,
though made on the execution side, may be transferred to the original side
or may be treated as an application made on the original side and time
may be extended under s. 28 of the Act. The Andhra Pradesh High Court y
in Ibrahim Shariff v. Masthan Shariff, (1967) 2 Andhra Weekly Reporter
C 60, at (p.65), took the contra view that an application does not lie on the
execution side and it should be filed on the original side.

5. Sri Nambiar, learned counsel appearing for the respondent, con-
tended that the meaning of the word "same suit" in s. 28(1) of the Act
should not be construed to be the original court in which the decree was
D made. Therefore, the application would lie for extension of time, or for
rescinding the contract, only in the appellate court and not in the trial ....__
court, that too an execution side. We find no force in the contention.

Section 37 C.P.C. enumerates that:

E "37. Definition of the court which passed a decree - The
expression "Court which passed a decree", or words to that
effect, shall, in relation to the execution of decrees, unless
there is anything repugnant in the subject or context, be
deemed to include-
F (a) Where the decree to be executed has been passed in
the exercise of appellate jurisdiction, the Court of first
instance, and

xxx xxx

G Therefore, it is' clear that the decree of the appellate court would be
construed to be the decree passed by the Court of first instance. It is settled
law that an appeal is a continuation of the suit. Therefore, when a decree -+.
for specific performance has been dismissed by the trial court, but decreed
by the appellate court, it should be construed to be in the same suit. When
H the decree specifies the time for performance of the conditions of the
r \

RAMANKUTIT v. AVARA [K. RAMASWAMY, J.) 547

decree, on its failure to deposit the money, s. 28(1) itself gives power to A
the court to extend the time on such terms as the court may allow to pay
the purchase money or other sum which the court has ordered him to pay.
In K Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar, (1980) 2 S.C.R.
293, this court held that on an oral prayer made by the counsel for the
plaintiff for permission to deposit the entire amount as directed by the trial B
court this court directed the appellant to deposit the amount within six
months from that date together with interesst and other conditions men-
tioned therein. An application for extension of time for payment of balance
consideration may be filed even in the court of first instance or in the
appellate court in the same suit as the decree of the trial court stands
merged with that of the appellate court which decree is under execution. C
It is to be seen that the procedure is the hand-maid for justice; and unless
the procedure touches upon jurisdictional issue, it should be moulded to
subserve substantial justice. Therefore, technicalities would not stand in the
way to subserve substantive justice. Take a case where the decree is
transferred for execution to a transferee executing court, then certainly the D
transferee court is not the original court and execution Court is not the
"same court" within the meaning of s. 28 of the Act. But when an applica-
tion has been made in the court in which the original suit was filed and the
execution is being proceeded with, then certainly an application under s.
28 is maintainable in the same court.
E
6. The question then emerges is whether it should be on the original
side or execution side. Section indicates that it should be "in the same suit".
It would obviously mean in the suit itself and not in the execution proceed-
ings. It is equally settled law that after passing the decree for specific
performance, the Court does not cease to have any jurisdiction. The court F
retains control over the decree even after the decree has been passed. It
was open to the court to exercise the power under s. 28(1) of the Act either
for extension of time or for rescinding the contract as claimed for. Since
the execution application has been filed in the same court in which the
original suit was filed, namely, the court of first instance, instead of treating
the application on the execution side, it should have as well been numbered G
as an interlocutory application on the original side and disposed of accord-
·+ ing to law. In this view, we feel that the judgment of the Bombay High
Court laid down the law correctly and that of the Andhra· Pradesh High
Court is not correct. The High Court, therefore, is not right in dismissing
the application treating it to be on execution side, instead of transferring H
548 SUPREME COURT REPORTS (1994) 1 S.C.R.

A it on the original side for dealing with it according to law.
7. The question then is whether it is a fit case for our interference.
It is seen that the decree for specific performance became final. While the
second appeal was pending. the balance consideration was deposited and
no steps have been taken to l'iring it to the notice of the High Court that
B the respondent had committed default in compliance of the appellate
decree of depositing \\ithin the given time the balance consideration.
Moreover, the res~ndent has been in possession of the land for a long
time. The execution is on mid-way. LTnder the~e circumstance, the com-
mand of Art. 136 of the Constitution is to draw the curtain and allow the
C application to lie in quietus where it was laid and dismiss the appeal. We
pay need to and do accordingly, but \\ithout costs.

G.N. Appeal dismissed.