KULBIR SINGH AND ORS. Vs. ISHWINDER SINGH

JUDGEMENT

(1.) The revision is against the order dismissing a petition filed by the judgment debtor under Section 28 of the Specific Relief Act for rescission of the decree. The decree was passed for specific performance on 25.08.2007 in favour of the plaintiff directing, inter alia, the decree holder to deposit the balance of sale consideration within 2 months from the date of the decree. Admittedly, there had been no compliance of such a direction.

(2.) The decree holder appears to have filed an application seeking for extension for deposit on 07.10.2009 and in the application, the court had ordered notice to the judgment debtor. The judgment debtor contested the request and contended that the request of the decree holder was barred by limitation. The court subsequently passed an order on 19.11.2011 taking notice of the application for depositing the sale consideration filed on 07.10.2009 and had observed that the court had already permitted the decree holder to deposit the sale consideration on 14.10.2009. He had also observed that there was no further adjudication necessary since the court of Shri Deepak Kumar Choudhary was the court that passed the decree and application had already been disposed of. It was subsequent to this order on 19.11.2011 that the judgment debtor appears to have filed a petition under Section 28 for rescission of the decree. The application to rescind the decree had been dismissed citing his own earlier order of 19.11.2011 and finding that the amount had been deposited as per orders of court and, therefore, the decree could not be rescinded.

(3.) To a contention raised by the petitioners, the counsel appearing on behalf of the respondent would agree that the court was in error in stating that the time for deposit had already been extended by an order of court. There was no other order prior to 19.11.2011 permitting such deposit through an express order on the objection taken by the judgment debtor that the application for deposit was barred by limitation. The counsel for the respondent, however, points out that this order dated 19.11.2011 was not challenged by the judgment debtor and he had moved an application under Section 28 only a year later. The judgment debtor had, therefore, not come to the court with clean hands.