SATHAMRAJU SURYANARAYANA Vs. THUMMETI SYDAIAH

JUDGEMENT

(1.) In O.S. No. 64 of 1957 on the file of the District Munsif, Gurazala, the parties arrive at a compromise and a the parties arrived at a compromise and a decree in terms of the compromise was passed on 24th July, 1958, in the following terms :

(2.) The plaintiff-decree-holder to whom the respondent herein had to pay a sum of Rs. 1,390 having failed to pay the same applied for execution of the decree ; but having failed to realise the amount filed an unnumbered interlocutory application of 1970 in O.S. No. 64 of 1957 on the file of the District Munsif, Gurazala under section 28 of the Specific Relief Act, 1963 to rescind the contract, cancel the decree in O.S. No. 64 of 1957 and direct the respondent to ut him in possession of the plaint schedule property and also to pay mesne profits from the date of suit till the date of delivery of possession. The learned District Munsif by his order dated 21st August, 1970, now under revision, held that the petition is not maintainable and that the proper remedy for the petitioner is to file a separate suit for determination of the rights of each party. The Court below rejected the petition on the ground that the decree in O.S. No. 64 of 1957 is not a suit for specific performance but a suit for recovery of money and under the terms of the decree, the remedy of the petitioner-decree-holder was to recover the amount by way of execution and on failure to realise the amount by way of execution, his remedy was by way of a separate suit for determination of such rights as he may be entitled to.

(3.) While it is contended by Mr. P.L.N. Sarma, learned Counsel for the petitioner that section 28 of the Specific Relief Act applies to the facts of the case, Sri Chenna Kesava Rao for respondent argues that section 28 of the Specific Relief act applies to the facts of the case, Sri Chenna Kesava Rao for respondent argues that section 28 of the Act applies only to a case where a decree is passed in a suit for specific performance. Section 28(1) of the Act which is relevant for our present purpose reads as follows:-