RAMANKUTTI GUPTAN Vs. AVARA

JUDGEMENT

(1.) LEAVE granted.

(2.) 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 consideration of Rs. 4,351 within one month from January 27, 1982 made by the appellate decree in AS 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 CRP No. 593 of 1990 dismissed the petition by judgment dated August 11, 1992 holding it not maintainable on the execution side.

(3.) THERE appears to be a difference of opinion among the High Courts in this behalf. The Bombay High Court in Maruti Vishnu Kshirsagar v. Bapu Keshav Jadhav (AIR 1970 Born. 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 section 28 of the Act. The Andhra Pradesh High Court in Ibrahim Shariff v. Masthan Shariff (1967) 2 AWR 60, 65] took the contra view that an application does not lie on the execution side and it should be filed on the original side.