RAMANKUTTY GUPTAN Vs. AVARA

JUDGEMENT

(1.) THE petitioner in E. A. No. 331 of 1988 in E. P. No. 32 of 1982 in O. S. No. 98 of 1978 (defendant in the suit), Sub Court, Ottapalam, is the revision petitioner. THE respondent herein is the respondent in E. A. No. 331 of 1988 (decree holder-plaintiff in the suit ). THE defendant-revision petitioner filed e. A. No. 331 of 1988 before the Sub Court, Ottapalam under S. 28 of the Specific Relief act, 1963 to rescind the contract dated 16-1-1976. THE court below dismissed the petition, by orders dated 28-2-1990. THE petitioner in the court below (defendant in the suit) has come up in revision.

(2.) I heard counsel for the revision petitioner, Mr. V. R. Venkatakrishnan, and also counsel for the respondent, Mr. V. P. Mohankumar and mr. Gopikrishnan.

(3.) THE court below held that the appeal and the execution are continuation of the suit and so there is no merit in the plea that the application filed under S. 28 of the Specific Relief Act in the execution court is not maintainable. THE court below also held that the decree passed in a. S. No. 213 of 1979 merged in the decree passed by this Court in S. A. No. 527 of 1982 and so, the period allowed for payment of purchase money should be calculated from the date of the final appellate decree. It was further held that when a decree passed by the lower court is taken in appeal and the appellate court decides the matter, the decree of the appellate court must be taken to have incorporated the terms of the decree of the court of first instance and the period allowed for payment of purchase money should be calculated from the date of appellate decree. It was held that whenever there is an appeal, the decree of the court of first instance merges in the appellate decree. In this view, it was held that the respondent-plaintiff need deposit the sum only after one month from the date of disposal of the second appeal. Since the deposit was made long before that date, as early as 10-3-1982, it was in time and the revision petitioner cannot put forward the plea that he is entitled to rescind the contract. It is from the aforesaid order passed by the court below in E. A. No. 331 of 1988 dated 28-2-1990, the petitioner in' the court below has come up in revision.