RAMAKUTTY GUPTA Vs. AVARA

JUDGEMENT

(1.) Leave granted.

(2.) The appellant judgment-debtor filed a petition in the executing court to rescind the contract dated Jan. 16, 1976 on the plea that the respondent- plaintiff had committed default in depositing had committed default in depositing the balance consideration of Rs. 4,351/- within one month from Jan. 27, 1982 made by the appellate decree in A.S. No. 213 of 1979. The executing court dismissed the application on the ground 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 Aug. 11, 1992 holding it not maintainable on the execution side.

(3.) The only question that arises for consideration is whether an application under Sec. 28 of the Specific Relief Act, 1963, for short 'the Act' 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 performance. The trial court dismissed the suit. On appeal, while granting the decree for specific performance, the court granted one month time to deposit the balance 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 Sec. 28 of the Act. The original suit and the execution application is in the same court.