BALKAR SINGH ETC Vs. MANMOHAN SINGH ETC

JUDGEMENT

(1.) THIS revision petition is directed against order dated 18.12.1991 whereby application of the judgment -debtors under Section 28 of the Specific Relief Act has been allowed and agreement dated 11.3.1974 has been ordered to be rescinded and in consequence thereof execution application filed by the decree -holders (petitioners herein) has been dismissed.

(2.) IN brief, the facts are that on 17.4.1978 the trial Court passed a decree for specific performance of the agreement dated 11.3.1974 in favour of the petitioners and against the respondents. Respondents were directed to execute the sale -deed within a period of three months and in default petitioners were held entitled to get the sale -deed executed through the Court. Against the judgment and decree of the trial Court, respondents No. 1 and 3 and Jaswant Singh, predecessor -in -interest of respondents No. (ii) to (vi) filed Regular First Appeal No. 640 of 1978 along with stay application. Appeal and the stay application came up for motion hearing on 23.5.1978 when notice of the appeal was ordered to be issued and execution of the decree was stayed. Subsequently, the stay application came up for hearing before Hon'ble Mr. Gurnam Singh, J, (as his Lordship then was) on 28.7.1978 and after hearing the arguments of counsel for the parties the following order was passed: -

(3.) HAVING heard the learned counsel for the parties, I am of the view that the revision petition deserves to succeed. Section 28 of the Specific Relief Act has been enacted with a view to provide remedy in case plaintiff in whose favour decree for specific performance of contract for sale or lease of Immovable property has been passed does not pay within the time specified in the decree or within such further time the Court may allow purchase money or any other sum which the Court ordered him to pay as a condition for the enforcement of the decree. It says that in such cases the vendor or the lessor will have a right to approach the Court which passed the decree and apply in the same suit, in which the decree was passed to rescind the contract so far as it related to the party in default or the whole of it, as the justice of the case requires. Under Section 28 of the Specific Relief Act, 1963, at the time of passing a decree for specific performance of a contract for the sale of Immovable property the Court has undoubtedly the power to direct payment by the purchaser of the price or other sum by a fixed date. The said section, however, proceeds to lay down that, in such a case, if the purchaser fails to pay the amount within the time fixed by the decree for specific performance, the vendor could apply in the same suit to have the contract rescinded and, on such application, the Court may order rescission of that contract and proceed to give consequential directions for the restoration of any benefits received thereunder. However, before exercising discretion under Section 28 to rescind a contract the Court has to be satisfied that the purchaser has made default in making payment of the purchase money or any other sum which the Court had ordered him to pay. The Court cannot on flimsy grounds annul a decree once passed by it. It has been held by this Court in Gurdit Singh v. Jagjit Singh, 1987 1 P.L.R. 129 that a clear case of default has to be established against the decree -holder for rescinding the contract or to nullify the decree for specific performance. Thus, it remains to be examined whether a clear case of default has been made out in this case.