RAMESH Vs. JOHN K JOSEPH

JUDGEMENT

(1.) Both the revision petitions arise from a suit, O.S.No.2 of 1988 on the file of the Subordinate Judge's Court, Cherthala, It was a suit for specific performance which was decreed on 19-12-1992. The defendant judgment debtor is the revision-petitioner in both the revisions. The plaintiff-decree holder is the respondent. C.R.P.No.2423 of 1994 is against an order in E. A.No.310 of 1993 in E P. No. 114/93 in O.S.No.2 of 1988 allowing the petition for extension of time for payment of the balance consideration as per the decree. C.R.P.No.284 of 1995 is against the order in I.A.No.587 of 1993 in O.S.No.2 of 1988 refusing to rescind the contract. I.A.No.587 of 1993 was filed by the defendant judgment debtor for rescinding the contract on the trial side after the decree whereas E.A.No.310/93 was filed by plaintiff-decree holder on the execution side for extension of time. The above two petitions were disposed of by the court below as per a common order dated 2-9-1994.

(2.) The functional portion of the decree in O.S.No.2 of 1988 filed by the plaintiff, dated 19-12-1992 reads thus: "Defendant is directed to execute a sale deed in favour of the plaintiff in respect of the scheduled property for a sum of Rs.75,000/- at plaintiff's cost after receiving balance sale consideration of Rs.25,000/-. The document is to be executed within a period of one month from this date. If the defendant fails to execute a sale deed in favour of the plaintiff in respect of the scheduled property as is directed above plaintiff can get executed the document in his favour through court, by depositing a balance sale consideration of Rs.25,000/- in court. Plaintiff has to deposit balance sale consideration in court within a period of three months from this date in court if a document is to be executed through court in respect of the suit property."

(3.) The first and foremost point brought forward by Mr. V.N. Swaminathan, learned counsel for the defendant is that the balance sale consideration was not remitted by the plaintiff within the period specified in the decree and it was only after the receipt of the notice issued by him rescinding the contract the plaintiff filed the petition for extension of the period for payment of balance consideration as per the decree. Since the defendant has already exercised his right to rescind the contract, the petition for extension of time is not maintainable, so argues the counsel. It is no doubt true that the defendant has issued the notice to the plaintiff rescinding the contract before filing the petition for extension of time. As per the terms of the decree, the period for remitting the balance sale consideration by the plaintiff was expired on 19-3-1993. There is no dispute that the balance consideration was, however, deposited on 7-7-1993 by the plaintiff and on 17-7-1993 he filed E.A.No.310/93 for extension of period for payment of the balance consideration. It is also not in dispute that the notice issued by the defendant rescinding the contract was received by the plaintiff on 22-6-1993. It is thus an admitted case that the plaintiff has applied for extension of time for payment of the balance consideration only after the receipt of the notice rescinding the contract.