RAJESWARI vs SAMPOORNAM,
- Court
- Madras High Court
2026:MHC:3597
S.A. No.2186 of 2004
THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 08 / 06 / 2026
JUDGMENT DELIVERED ON : 01 / 09 / 2026
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A. No.2186 OF 2004
1.Rajeswari
W/o. Late Thiruvengadachari
2.Amutha
D/o. Late Thiruvengadaachari
3.Muthulakshmi
D/o. Late Thiruvengadaachari
4.Santhi
D/o. Late Thiruvengadaachari
5.Vasanthi
D/o. Late Thiruvengadaachari
6.Ramesh
S/o. Late Thiruvengadaachari
7.Baskar
S/o. Late Thiruvengadachari
8.Srinivasan
S/o. Late Thiruvengadaachari
9.Samundeeswari
D/o. Late Thiruvengadaachari ... Appellants /
Appellants /
Defendants 1-9
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All are residing at :
No.36, Sabapathy Mudali Street,
Perambur,
Chennai – 600 011.
Versus
1.Sampoorrnam (Deceased)
W/o. Late R.Varatharajalu Naidu
2.H.Vijaya
W/o. R.V.Hemadri … Respondents 1 & 2 /
Respondents 1 & 2 /
Plaintiffs
Both are residing at :
No.10, Post Office Street,
Jawahar Nagar,
Chennai – 600 082.
3.Rajamanickam
S/o. Late Subramani Gramani,
Thottikkarai Village, Thirunindravoor Post,
Thiruvallore Taluk,
Chengalput District.
4.Pushpa
W/o. Late Vinayagamurthy,
Thottikkarai Village, Kalambagam Post,
Thiruvallore Taluk,
Chengalput District. … Respondents 3&4 /
Respondents 3&4 /
Defendants 10 & 11
5.Smt. Sujatha
6.R.N.Hemadri … Respondents 5 &
6 /legal representatives
of deceased Respondent-1
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PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
December 16, 2002 made in A.S.No.105 of 1999 on the file of the II
Additional Judge, City Civil Court, Chennai, confirming the Judgment and
Decree dated September 17, 1997 made in O.S.No.6774 of 1996 on the file
of the VII Assistant Judge, City Civil Court, Chennai.
For Appellants : Mr.T.M.Hariharan
for M/s.T.Srinivasaraghavan
For Respondent - 1: Died - Steps taken
For Respondents : Ms.S.V.Deva Shanthi
- 2, 5 & 6 for M/s.S.V.D.Rajendra Prasad
For Respondent - 3 : Insufficient address
For Respondent - 4 : Served – No appearance
*
J U D G M E N T
This Second Appeal is directed against the Judgment and Decree
dated December 16, 2002 passed in A.S. No.105 of 1999 by 'the II
Additional Judge, City Civil Court, Chennai' ['First Appellate Court' for
convenience], whereby the Judgment and Decree dated September 17,
1997 passed in O.S. No.6774 of 1996 by 'the VII Assistant Judge, City
Civil Court, Chennai' ['Trial Court' for convenience] was confirmed.
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2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFFS' AVERMENTS NECESSARY FOR THE DISPOSAL
OF THIS SECOND APPEAL AS IT UNFURLS FROM THE CASE
FILE IN BRIEF
3. An extent of land measuring 6,029 ½ sq. ft. along with the
superstructure thereon, bearing Old Door No. 28, New Door No. 36,
Sabapathi Mudali Street, Perambur, Madras - 11, originally belonged to
Arumuga Gramani. He had a son by name Subramania Gramani, who had
two sons, namely S.Vinayagamurthy (Husband of Defendant No.11) and
S.Rajamanickam (Defendant No.10). S.Vinayagamurthy and
S.Rajamanickam became entitled to the aforesaid property by mode of
succession. On November 29, 1973, said S.Vinayagamurthy and
S.Rajamanickam together sold an extent of 1,073 sq. ft. thereof to one
Saroja, and on June 26, 1977, they together sold an extent of 1,080 sq. ft.
thereof to one John Devaraj. S.Vinayagamurthy passed away issueless on
January 12, 1985, leaving behind his wife / eleventh defendant - Pushpa as
his sole legal heir.
3.1. Thereafter, defendants 10 and 11 jointly executed a
registered Sale Deed dated September 19, 1988, conveying the remaining
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extent of 4,049 sq. ft. in the aforesaid property in favour of the plaintiffs.
The property conveyed to the plaintiffs is the suit property herein. Pursuant
to the said sale transaction, possession of a major portion of the suit
property was delivered to the plaintiffs. However, the remaining portion of
the suit property continued to be under the occupation of the first
defendant and her husband - Thiruvenkatachari. The plaintiffs took steps to
obtain possession of the suit property. In response, first defendant and her
husband relied upon three Sale Agreement dated June 1, 1980, December
31, 1980 and June 9, 1982 allegedly executed by S.Vinayagamurthy and
S.Rajamanickam in their favour, to lay claim in respect of entire suit
property.
3.2. Further case of the plaintiffs is that the first defendant and
her husband - Thiruvenkatachari filed O.S. No.5500 of 1983 on the file of
the V Assistant Judge, City Civil Court, Madras, seeking specific
performance of the aforesaid three Sale Agreements. The suit property
described herein was the subject matter of the said Suit. The said Suit was
decreed Ex-parte on November 16, 1983.
3.3. As per the said Ex-parte Decree, a sum of Rs.35,724.40/-
was required to be deposited by the vendees, the first defendant and her
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husband, towards the balance sale consideration, which they failed to do.
The said Ex-parte Decree did not prescribe any time limit for such deposit,
nor did the vendees take any steps to deposit the balance sale consideration
or otherwise act upon the Decree till 1988. Hence, the present plaintiff
obtained the aforesaid registered Sale Deed dated September 19, 1988 in
respect of the suit property from tenth defendant - Rajamanickam and
eleventh defendant - Pushpa.
3.4. The second defendant therein, who is the tenth defendant
herein, namely Rajamanickam filed I.A. No.445 of 1991 in O.S. No.5500
of 1983 under Section 28 of the Specific Relief Act, 1963 seeking to
rescind the aforesaid Ex-parte decree and the same was allowed after
contest and pursuantly, a sum of Rs.25,185/- was deposited on November
11, 1991, by him. Thereafter, defendants 1 to 9 herein filed I.A. No.16760
of 1991 seeking review of the Order passed in I.A. No.445 of 1991, which
was also dismissed on November 20, 1996. In the meantime, the Execution
Petition filed by first defendant and her husband was also dismissed on
August 3, 1992. Feeling aggrieved by rescindment of the aforesaid
Ex-parte decree, it appears that a Civil Revision Petition was filed by
defendants 1 to 9, which was also dismissed vide Order dated July 11,
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1997 made in C.M.P. No. 18223 of 1995 in C.R.P. (SR) No. 34402 of
1994.
3.5. Therefore, defendants 1 to 9 have no manner of right, title,
or interest whatsoever to remain in possession of a portion of the suit
property. The defendants 1 to 9 have lost their right to enforce the Ex-
parte Decree passed in O.S. No.5500 of 1983. The defendants 1 to 9 filed a
Suit in O.S. No.1406 of 1989 against the present plaintiffs and present
defendants 10 and 11, seeking injunction not to interfere with their
possession and enjoyment over the suit property, thereby creating cloud
over the present plaintiffs title. In the above circumstances, it became
necessary for the plaintiffs to institute the instant Original Suit seeking
declaration of title, declaration that the aforesaid Ex-parte Decree is void,
not valid and not binding on the plaintiffs and further seeking the relief of
recovery of vacant possession of the portion of suit property in the
occupation of defendants 1 to 9, permanent injunction and costs.
CASE OF DEFENDANTS 1 TO 9 IN BRIEF:
4. Defendants 1 to 9 filed a written statement resisting the Suit
and denying the allegations contained in the plaint. The defendants
admitted the plaint averments set out in Paragraph No.3 hereinabove.
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4.1. Main case of the defendants 1 to 9 is that the first
defendant and her husband - Thiruvenkatachari (vendees) entered into the
aforesaid three Sale Agreements with S.Vinayagamurthy and
Rajamanickam (vendors) in respect of the entire suit property. While the
vendees were always ready and willing to perform their part of the
contract, the vendors failed to execute Sale Deed. Hence, the vendees filed
a Suit in O.S. No. 5500 of 1983 seeking the relief of specific performance.
Since the vendors did not choose to contest the said Suit, it was decreed ex
parte on November 16, 1983. The Interlocutory Application in I.A.
No.23734 of 1983 filed praying to condone the delay in filing an
application to set aside the Ex-parte Decree was dismissed. Thereafter, the
first defendant and her husband deposited the balance sale consideration on
December 22, 1987 as per the Court's direction, vide Challan No.623, and
filed E.P. No. 464 of 1988 seeking enforcement of the Ex-parte Decree.
Tenth defendant herein - Rajamanickam contested the execution petition
while the eleventh defendant herein - Pushpa endorsed no objection to
execution of Sale Deed. When the execution petition in E.P. No. 464 of
1988 was pending, in 1991, the tenth defendant herein filed an
Interlocutory Application in I.A. No.445 of 1991 seeking to rescind the
aforesaid Ex-parte decree on the ground that the first defendant herein and
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her husband are not ready and willing to perform their part of the contract.
Further, While the said execution proceedings were pending, the tenth
defendant for himself and for the eleventh defendant as her power of
attorney holder, executed a Sale Deed in favour of the present plaintiffs on
September 19, 1988, with the sole intention of defeating and defrauding
the rights accrued to the defendants under the said Ex-parte Decree. The
said sale transaction is hit by lis pendens , and neither valid nor binding
upon the defendants 1 to 9, and the plaintiffs cannot derive any right, title,
or interest in the suit property thereunder. The plaintiffs being fully aware
of the subsistence of the aforesaid three Sale Agreements are not bonafide
purchasers for value without notice. Accordingly, the defendants 1 to 9
prayed for dismissal of the Suit.
DEFENDANTS 10 AND 11
5. The tenth defendant remained absent and was set ex-parte
by the Trial Court. The Suit against eleventh defendant was dismissed by
the Trial Court.
TRIAL COURT
6. Based on the pleadings, the Trial Court framed the following
issues:
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" 1.Whether the plaintiffs are entitled to
the relief of declaration of title?
2.Whether the plaintiff is entitled to the
relief of declaration that the Decree passed in
O.S.No.5600 of 1983 is not valid in law?
3.Whether the plaintiffs are entitled to
recover a portion of the Suit Property?
4.Whether the plaintiffs are entitled to the
relief of permanent injunction?
5.To what relief? ”
7. At trial, Hemadri, the son of first plaintiff, was examined as
P.W.1 and Ex-A.1 to Ex-A.9 were marked on the side of the plaintiffs. On
the side of the defendants, first defendant was examined as D.W.1 and no
document was marked.
8. After full-fledged trial, the Trial Court observed that,
although the Ex-parte Decree in O.S. No.5500 of 1983 was passed on
November 16, 1983, the plaintiffs therein, namely, the first defendant and
her husband, deposited the balance sale consideration only on December
22, 1987, after a delay of more than four years. The Trial Court further
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observed that the Ex-parte decree in favour of first defendant herein and
her husband were rescinded under Section 28 of the Specific Relief Act,
1963 vide Order passed in I.A. No. 445 of 1991. Review Application filed
challenging the Order passed in I.A. No.445 of 1991 was also dismissed.
The Execution Proceeding was also dismissed. In these circumstances, the
Ex-parte Decree passed in O.S. No.5500 of 1983 is unenforceable. On the
other hand, the plaintiffs purchased the suit property from the original
owners and established their title over the suit property. Accordingly, the
Trial Court decreed the suit as prayed for.
FIRST APPELLATE COURT
9. Feeling aggrieved, defendants 1 to 9 preferred an appeal
before the First Appellate Court, which after hearing both sides, concurred
with the findings of the Trial Court and accordingly, dismissed the appeal
and confirmed the Judgment and Decree of the Trial Court.
SECOND APPEAL
10. Feeling aggrieved, defendants 1 to 9 have preferred the
present Second Appeal under Section 100 of the Code of Civil Procedure,
1908, which was admitted on November 26, 2004 on the following
substantial questions of law:
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" 1.When in a suit for declaration of
title, the vendors of the plaintiffs suffered a ex parte
decree in an earlier suit for specific performance in
respect of the suit property, whether the vendors of
the appellants thereafter can validly convey to the
plaintiffs any right, title or interest in the suit
property?
2.When the appellants had deposited the
entire amount directed in the decree for specific
performance, whether the decree can be rescinded?
3.When the specific performance does
not stipulate any time limit for deposit of the balance
of the sale price, whether a delayed deposit of money
would result in the rescission of the decree? "
ARGUMENTS
11. Mr.T.M.Hariharan, representing M/s.T.Srinivasa Raghavan,
learned Counsel on record for the appellants, would submit that the first
defendant and her husband - Thiruvenkatachari entered into three Sale
Agreements dated June 1, 1980, December 31, 1980, and June 9, 1982,
with the owners of the property, namely, legal heir of late
S.Vinayagamurthy and S.Rajamanickam. Since the vendors failed to
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execute Sale Deed in accordance with the said Sale Agreements, the first
defendant and her husband instituted a Suit in O.S.No.5500 of 1983
seeking the relief of specific performance. The said Suit was decreed
Ex-parte on November 16, 1983. Subsequently, on December 22, 1987, the
first defendant herein and her husband, who were the plaintiffs therein,
deposited the balance sale consideration of Rs.35,724.40 to the credit of
O.S.No.5500 of 1983 and thereafter filed E.P.No.464 of 1988 for execution
of the Sale Deed.
11.1. He would further submit that during the pendency of the
execution proceedings, on September 19, 1988, with a view to defeat and
defraud the rights of the defendants 1 to 9, defendants 10 and 11 conveyed
the suit property in favour of the plaintiffs herein. Thereafter, the tenth
defendant herein filed I.A. No.445 of 1991 under Section 28 of the
Specific Relief Act, 1963 seeking rescission of the Ex-parte decree in
O.S.No.5500 of 1983. The first defendant and her husband filed I.A.
No.12534 of 1991 seeking dismissal of I.A. No. 445 of 1991. On
September 11, 1991, I.A. No.445 of 1991 was allowed and consequently,
I.A. No.12534 of 1991 was dismissed. Review Application filed against
Order in I.A. No.445 of 1991 was also dismissed.
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11.2. Further, he would submit that defendants 1 to 9 preferred
a Civil Revision Petition before this Court. The said Revision Petition was
initially returned for rectification of certain defects. Thereafter, the said
Civil Revision Petition was re-presented along with C.M.P. No.18223 of
1995, and the same was dismissed on July 25, 1997. He would further
submit that the Appellants are taking steps to set aside the Order passed in
C.M.P.No.18223 of 1995 and restore the CMP.No.18223 of 1995.
11.3. He further submits that the Ex-parte - Decree did not
prescribe any specific period for depositing the balance sale consideration.
In such circumstances, and in view of the pendency of the petition to set
aside the Ex-parte Decree, the plaintiffs therein, namely first defendant
herein and her husband, who were the decree-holders in O.S. No. 5500 of
1983, deposited the balance sale consideration on December 22, 1987, vide
Challan No.623.
11.4. He further submits that, prior to filing I.A. No. 445 of
1991 seeking rescission of the decree, defendants 1 and 2 herein had
already deposited the balance sale consideration. Hence, the Court which is
passed the decree in O.S.No.5500 of 1983 (Vth Assistant Court, City Civil
Court, Chennai) ought to have dismissed I.A. No.445 of 1991 and allowed
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I.A.No. 12534 of 1991. Therefore, the Order passed in I.A. No.445 of 1991
is erroneous. In these circumstances, the plaintiffs herein, being fully
aware of the Sale Agreements and the Ex-parte Decree passed in favour of
first defendant and her husband, colluded with defendants 10 and 11 and
obtained the Sale Deed in their favour. The said Sale Deed is not binding
upon first defendant and her husband.
11.5. The learned Counsel would vehemently contend that I.A.
No.445 of 1991 was filed in November, 1990 i.e., after lapse of 7 years
from the passing of Ex-parte Decree and hence the said application is
clearly barred by Article 137 of the Limitation Act, 1963, which
proposition he would rely upon the following Judgments:
(a) The Kerala State Electricity Board, Trivandrum
-vs- T.P.Kunhaliumma reported in (1976) 4 SCC 634 .
(b) G.S.Chakravarthi Asokar @ G.S.Ashokar -vs-
Therasitta Santhi reported in 2004-4-L.W. 611 .
(c) B.V.Gururaj -vs- M.R.Rathindran reported in
2010-1-L.W. 361 .
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11.6. In short, his core contention is that the Ex-parte Decree
passed in O.S. No.5500 of 1983 is valid and subsisting, and the Order
passed in I.A. No.445 of 1991 is erroneous. He would submit that the Trial
Court as well as the First Appellate Court failed to properly consider the
fact that even before the filing of application of recision of Ex-parte
decree, first defendant herein and her husband had deposited the balance
sale consideration into the Court on December 22, 1987 and hence, it
cannot be said that they had deposited the sum belatedly. It further failed to
consider the fact that they were ready and willing to perform their part of
the contract as per the Ex-parte Decree. Without considering these facts,
the First Appellate Court erred in dismissing the Appeal Suit and
confirming the Decree of the Trial Court. He therefore would pray that the
Second Appeal be allowed, the Judgments and Decrees passed by the Trial
Court and the First Appellate Court be set aside, and the Original Suit be
dismissed.
12. Per contra , Ms. S.V.Deva Shanthi, learned Counsel
representing M/s.S.V.D. Rajendra Prasad, Counsel on record for
Respondent Nos. 2, 5 and 6, would submit that the Ex-parte Decree passed
in O.S. No.5500 of 1983 became unenforceable as the same was rescinded
by the Order passed in I.A. No. 445 of 1991 (Ex-A4 & A8). The Review
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Application filed against the said Order was also dismissed, as evidenced
by Ex-A.7. The Execution Petition was also dismissed on August 3, 1992.
(Ex.A.9)
12.1. The learned Counsel further would submit that, in a Suit
for specific performance, the plaintiff must always be ready and willing to
perform his/her part of the contract. Such readiness and willingness must
continue not only up to the date of the Judgment and Decree but also
thereafter, until the execution of the Sale Deed. She further would submit
that the Ex-parte Decree was passed on November 16, 1983, whereas the
balance sale consideration was deposited only on December 22, 1987, i.e.,
more than four years after the date of decree. This clearly demonstrates
that the plaintiffs in O.S. No.5500 of 1983 was not ready and willing to
perform their part of the contract. Though the Ex-parte Decree was silent
as to the period within which the balance sale consideration was to be
deposited, the plaintiff ought to have deposited the same within a
reasonable period. A delay of more than four years cannot, in the given
circumstances, be construed as reasonable. Further, no acceptable or
satisfactory explanation has been offered explaining such delay. The Court,
after considering the entire facts and circumstances of the case, allowed
I.A. No.445 of 1991 and directed the defendants 1 and 2 therein, namely
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defendants 10 and 11 herein, to deposit the interest amount. Pursuant to the
said Order, a sum of Rs. 25,185/- was remitted on November 11, 1991,
towards the interest, as directed by the Court.
12.2. She further would submit that the Review Application
filed against the Order made in I.A.No.445 of 1991 was also dismissed on
November 20, 1996. Hence, the Order passed in I.A. No. 445 of 1991 has
attained finality. In the circumstances, first defendant herein and her
husband, who were the plaintiffs in O.S. No.5500 of 1983, cannot reopen
or reagitate the issue once again in this suit. Since the defendants 1 to 9
are in possession and enjoyment of a portion of the suit property, it became
necessary for the plaintiff to institute the present Suit inter-alia seek
declaration and delivery of possession. As the plaintiffs herein were not
parties to the earlier proceedings, in order to avoid any technical difficulty,
the plaintiffs herein sought a declaration that the Ex-parte Decree passed in
O.S. No. 5500 of 1983 is null and void and not binding upon them. The
Trial Court as well as the First Appellate Court, after considering the
evidence available on record, rightly decreed the Suit, and there is no error
or infirmity in their Judgments and Decrees. No substantial question of law
arises for consideration in the present Second Appeal. Accordingly, she
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would pray for dismissal of the Second Appeal and sustain the Judgments
and Decrees of the First Appellate Court and the Trial Court.
DISCUSSION:
13. This Court has heard the submissions made by the learned
Counsel appearing on both sides and perused the materials available on
record in light of the Substantial Questions of Law framed.
14. Admittedly, S.Vinayagamurthy and S.Rajamanickam, sons
of Subramania Gramani and grandsons of Arumuga Gramani, were entitled
to the suit property along with some more extent of properties which
originally belonged to Arumuga Gramani.
15. The aforesaid S.Rajamanickam and S.Vinayagamurthy on
one hand as vendors and the first defendant herein and her husband -
Thiruvenkatachari on the other hand as vendees, entered into three Sale
Agreements dated June 1, 1980, December 31, 1980, and June 9, 1982 in
respect of the suit property. Based on the said Sale Agreements, the first
defendant and her husband instituted a Suit for specific performance in
O.S. No.5500 of 1983 on the file of the V Assistant Judge, City Civil
Court, Chennai alleging that the vendors failed to perform their part of the
contract while they (vendees) were always ready and willing to pay the
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balance sale consideration and get the Sale Deed executed in their favour.
The said Suit was decreed ex-parte on November 16, 1983 with a direction
to first defendant herein and her husband to deposit the balance sale
consideration without stipulating any time limit for such deposit. It appears
that the defendants therein filed an application to set aside the Ex-parte
Decree, and the said application was dismissed.
16. While the Decree was passed on November 16, 1983, the
first defendant and her husband deposited the balance sale consideration of
Rs.35,724.40/- pursuant thereto only on December 22, 1987, that is to say
after a lapse of about four years. Thereafter, the first defendant and her
husband filed an Execution Petition in E.P. No.464 of 1988 seeking
execution of Sale Deed by the tenth defendant herein and the husband of
the eleventh defendant herein. At that stage, the tenth defendant herein,
who is second defendant in the said Suit, filed I.A. No. 445 of 1991 under
Section 28 of the Specific Relief Act, 1963 seeking rescission of the
aforesaid Ex-parte Decree by contending that the first defendant herein
and her husband, who were plaintiffs therein, were not ready and willing to
perform their part of the contract and that was the reason for their failure to
deposit the balance sale consideration immediately from the passing of the
Ex-parte Decree; on the other hand, they deposited the balance sale
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consideration only after a lapse of four years from the date of the Decree.
The Court allowed I.A. No.445 of 1991. The aforesaid Ex-parte Decree
was rescinded and consequently, the Ex-parte Decree became
unenforceable.
17. At this juncture, it is apposite to refer to Order XX Rule
12A of the Code of Civil Procedure, 1908 which reads as follows:
"12A. Decree for specific performance of contract for the sale or lease of
immovable property.—
Where a decree for the specific performance of a
contract for the sale or lease of immovable property
orders that the purchase-money or other sum be paid
by the purchaser or lessee, it shall specify the period
within which the payment shall be made. "
18. The Ex-parte Decree in O.S. No.5500 of 1983 was clearly
not drafted in accordance with the above provision. The lacunae was that
no time frame was fixed for deposit of the balance sale consideration.
Nonetheless, though the Ex-parte Decree was silent as to the period within
which the balance sale consideration was to be deposited, first defendant
and her husband ought to have made the deposit within a reasonable
period. In a Suit for specific performance, even after passing of a decree,
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the contract of sale is treated as a subsisting contract. The plaintiff shall be
ready and willing to perform their part of the contract as per the decree.
Any failure thereof, the defendant can file application under Section 28 of
the Specific Relief Act, 1963 seeking recission of contract and the Court is
at discretion to either rescind or extend time based on facts and
circumstances. In this regard, it is apposite to cite here the Judgment of
Hon'ble Supreme Court in Hungerford Investment Trust Ltd. -vs-
Haridas Mundhra , reported in (1972) 3 SCC 684 [Coram Strength =2],
wherein it was held as hereunder:
" 22. It is settled by a long course of decisions of
the Indian High Courts that the Court which passes a
decree for specific performance retains control over
the decree even after the decree has been passed.
In Mahommadalli Sahib v. Abdul Khadir Saheb,
[(1930) 59 MLJ 351] it was held that the Court which
passes a decree for specific performance has the
power to extend the time fixed in the decree for the
reason that Court retains control over the decree, that
the contract between the parties is not extinguished by
the passing of a decree for specific performance and
that the contract subsists notwithstanding the passing
of the decree. In Pearisundari Dassee v. Hari Charan
Mozumdar Chowdhry, [ILR (1888) 15 Cal 211] the
Calcutta High Court said that the Court retains
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control over the proceedings even after a decree for
specific performance has been passed, that the decree
passed in a suit for specific performance is not a final
decree and that the suit must be deemed to be pending
even after the decree. The same view was taken
in Someshwar Dayal v. Widow of Lalman Shah [AIR
1958 All 488] . In Anandilal Poddar v. Gunendra Kr.
Roy[AIR 1966 Cal 107] Ray, J., speaking for the
Court, said that the court retains control over the
matter even after passing a decree for specific
performance and that virtually, the decree is in the
nature of a preliminary one. In Tribeni
Tewary v. Ramratan Nonia [AIR 1959 Pat 460] it was
held that the Court retains rescission of the case
notwithstanding the fact that a decree for specific
performance has been passed and that the decree is
really in the nature of a preliminary decree. "
18.1. Further, the Hon'ble Supreme Court in Sardar Mohar
Singh -vs- Mangilal alias Mangtya, reported in (1997) 9 SCC 217 has
held as hereunder:
" 4. From the language of sub-section (1) of
Section 28, it could be seen that the court does not
lose its jurisdiction after the grant of the decree for
specific performance nor it becomes functus officio.
The very fact that Section 28 itself gives power to
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grant order of rescission of the decree would indicate
that till the sale deed is executed in execution of the
decree, the trial court retains its power and
jurisdiction to deal with the decree of specific
performance. It would also be clear that the court has
power to enlarge the time in favour of the judgment-
debtor to pay the amount or to perform the conditions
mentioned in the decree for specific performance, in
spite of an application for rescission of the decree
having been filed by the judgment-debtor and rejected.
In other words, the court has the discretion to extend
time for compliance of the conditional decree as
mentioned in the decree for specific performance. … "
18.2. Further, Hon'ble Supreme Court in Bhupinder Kumar
-vs- Angrej Singh , reported in (2009) 8 SCC 766 [Coram Strength =2],
after referring to various decisions, held as hereunder:
" 21. It is clear that Section 28 gives power to the
court either to extend the time for compliance with the
decree or grant an order of rescission of the
agreement. These powers are available to the trial
court which passes the decree of specific performance.
In other words, when the court passes the decree for
specific performance, the contract between the parties
is not extinguished. To put it clearly the decree for
specific performance is in the nature of a preliminary
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decree and the suit is deemed to be pending even after
the decree.
22. Sub-section (1) of Section 28 makes it clear
that the court does not lose its jurisdiction after the
grant of decree for specific performance nor it
becomes functus officio. On the other hand, Section
28 gives power to the court to grant an order of
rescission of the agreement and it has the power to
extend the time to pay the amount or perform the
conditions of decree for specific performance despite
the application for rescission of the agreement/decree.
In deciding an application under Section 28(1) of the
Act, the court has to see all the attending
circumstances including the conduct of the parties. "
18.3. The Hon'ble Supreme Court in its recent decision in
Anand Narayan Shukla -vs- Jagat Dhari , reported in 2026 SCC OnLine
SC 827 [Coram Strength = 2], after referring to various precedents some of
which have been cited above, has summarised the legal principles
surrounding Section 28 of the Specific Relief Act, 1963 as hereunder:
" 33. Upon consideration of the provisions of
Section 28 of the 1963 Act as also the decisions
noticed above, in our view, the legal principles, inter
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alia, guiding the exercise of power under Section 28 of
the 1963 Act could be summarized as under:
(i) A decree for specific performance of a
contract is in the nature of a preliminary decree and
therefore, till the deed is executed pursuant to the
decree, the Court that passed the decree is vested
with the jurisdiction to either rescind the contract/the
decree for non-payment/non-deposit within the
stipulated period or extend the period for making
such payment/deposit.
(ii) Neither there is an automatic rescission of the
contract/decree for non-payment/non-deposit within
the period stipulated by the decree, nor there is an
automatic extension of time by making such deposit, if
the stipulated period for payment/deposit has expired.
However, where the decree stipulates that on failure to
pay/deposit within the specified period, the decree
shall stand rescinded or the suit shall stand dismissed,
the decree is rendered inexecutable on failure to
pay/deposit.
(iii) Prayer to extend the time for making deposit
in compliance of the conditions stipulated in the
decree may be made prior to, or even after, expiry of
the period stipulated therefor.
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(iv) There is no form prescribed for making the
prayer to extend the time to make such payment or
deposit. Therefore, the prayer seeking permission to
deposit the defaulted amount may be treated as one
for extension of time to deposit. Such prayer may be
made even orally while the Court seeks to address an
application for rescission of the contract/decree or
when the decree is put for execution, provided the
execution court is the one which passed the decree.
However, if the decree is passed by the appellate
court, such prayer/application may be made before the
court of first instance having regard to the provisions
of Section 37 of CPC. Further, what is important is
that such an application must be treated as an
application in the suit and numbered accordingly.
(v) As specific performance of a contract is an
equitable relief, while considering the prayer for
rescission of the contract/decree, or for extension of
time to make deposit in compliance of the decree, the
Court must be guided by principles of equity.
Therefore, while considering the prayer for extension
of time to make deposit, to balance the equities, the
Court would have to consider the attending facts and
circumstances of the case, the conduct of the parties
and whether, by putting the decree holder to such
additional terms and conditions, the judgment debtor
could be adequately compensated for the delay.
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(vi) Though each day's delay in deposit need not
be explained as in an application under Section 5 of
the Limitation Act, the test is whether from the conduct
of the decree holder it could be logically inferred that
he had no intention to complete his part of the
contract. If it appears so, and there appears an
element of willful negligence on the part of the decree
holder in complying with the terms of the decree, the
Court may invoke its power under Section 28 and
rescind the contract.
(vii) Under Order XX Rule 12 A of CPC, when a
decree for specific performance of a contract for the
sale, or lease of immovable property, orders that the
purchase-money or other sum is to be paid by the
purchaser or lessee, the Court must specify the
period within which the payment shall be made.
Therefore, where the suit for specific performance is
dismissed by the trial court but decreed by the
appellate court, or where the appeal against the
decree for specific performance is dismissed on
merits, the Court must fix the time within which such
payment is to be made. If no time limit is fixed, the
compliance thereof would have to be within a
reasonable period. As to what would be the
reasonable period would depend on facts of the case. "
[ Emphasis supplied by this Court ]
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19. Further, this Court also deems fit to cite here the decision
of this Court in Narasimhan -vs- Balammal, reported in 1988 SCC
OnLine Mad 297 , wherein it was held that, when there is no time period
stipulated for deposit of balance amount by the vendee in a specific
performance decree, the vendee ought to make such deposit within a
reasonable time. The Court further noted that the time of three years taken
for making such deposit cannot be said to be within reasonable time,
however that was on the facts of that case. Relevant extract reads
hereunder:
" 20. On the facts of this case, the respondent has
not proved her readiness and willingness to perform
her part of the contract within a reasonable time after
the decree. Though the decree in the present case has
not specified any time to deposit the amount, it was
the duty of the plaintiff to have performed her part
within a reasonable time. The time taken, viz, 3 years
and odd cannot be said to be reasonable by any
standard. Hence, the contract has to be rescinded as
prayed for by the petitioner. The Court below is wrong
in dismissing the application filed by the petitioner.
The application filed under S. 28 of the Specific Relief
Act will have to be allowed. "
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20. On the strength on the above case laws, one can easily
come to the conclusion that though the aforesaid Ex-parte Decree did not
stipulate any time period for depositing the balance sale consideration, the
first defendant herein and her husband ought to have deposited the said
amount within a reasonable time. This Court shall not get into the factual
question of whether the deposit made by them was within a reasonable
time frame or not, for it has already been decided in I.A. No.445 of 1991
against the first defendant herein and her husband and consequently, the
aforesaid three Sale Agreements were rescinded. It is to be noted that, after
the rescindment, the first defendant and her husband filed a Review
Application seeking review of the Order passed in I.A. No.445 of 1991,
and the same was also dismissed. It was further submitted that a Civil
Revision Petition before this Court was filed on the side of defendants 1 to
9 herein, which was also dismissed at the S.R. stage itself on July 11,
1997. Hence, the Order passed in I.A. No.445 of 1991 under Section 28 of
the Specific Relief Act, 1963 attained finality. Consequently, the aforesaid
three Sale Agreements were rescinded and the Ex-parte Decree passed in
O.S. No.5500 of 1983 was rendered unenforceable. Therefore, the
defendants cannot reopen or reagitate the matter once again in the present
Suit.
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21. Mr. T.M.Hariharan, the learned Counsel appearing for the
appellants who are defendants 1 to 9 in the Original Suit, would rely on
three case laws as stated above and contend that Article 137 of the
Limitation Act, 1963 is applicable to an application filed under Section 28
as well. In this regard, this Court is of the view that the question of
limitation ought to have been raised in the proceedings under Section 28 of
the Specific Relief Act, 1963. The Order passed in the Interlocutory
Application in I.A. No.445 of 1991 reached finality and the question of
limitation cannot be raised now in this case. Once the Order of rescindment
has reached finality, it would not be appropriate for this Court to get into
the merits of the same. The case laws relied upon by him would not come
to his aid in this case.
22. Since the defendants are in possession and enjoyment of a
portion of the suit property on the basis of the alleged Sale Agreements, it
became necessary for the present plaintiffs to institute the present Suit
seeking declaration, recovery of possession and permanent injunction. The
suit filed by the defendants 1 to 9 seeking injunction against the plaintiffs
herein and defendants 10 & 11 herein, was also dismissed for default on
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January 08, 1992. The plaintiffs have filed certified copy of the Decree as
Ex.A6. Considering the facts and circumstances, and the evidence
available on record both the Trial Court and the First Appellate Court,
having concurrently held that the present plaintiffs is entitled to the reliefs
sought, rightly decreed the Suit in favour of the present plaintiffs.
23. As narrated supra , the aforesaid three Sale Agreements
were rescinded by the Order passed in I.A. No.445 of 1991 dated
September 11, 1991 (Ex. A-7) and the Ex-parte Decree became
unenforceable. Hence, there was no subsisting Decree enforceable against
the present plaintiffs or in favour of defendants 1 and 2 therein.
Consequently, the vendors of the plaintiffs were competent to validly
convey their right, title, and interest in the suit property. It is true that Sale
under Ex.A.1 Sale Deed dated September 19, 1988 is a pendente lite sale,
validity of which is subject to the outcome of the Final decision/Final
Judgment. As narrated above, order of recision of Sale
Agreements/Contracts passed in I.A.No.445 of 1991 reached finality.
Hence, Ex-A.1 Sale Deed can not be termed as invalid. Accordingly,
Substantial Question of Law No.(i) is answered.
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24. As stated supra , in a Suit for specific performance based
on Sale Agreement, the plaintiff must demonstrate continuous readiness
and willingness to perform their part of the contract, not only from the date
of the Sale Agreement until the institution of the Suit, but also thereafter
until the passing of the Decree and execution of the Sale Deed. Though the
Ex-parte Decree was silent as to the period within which the balance sale
consideration was to be deposited, the plaintiffs in O.S. No.5500 of 1993
ought to have deposited the same within a reasonable period as elaborated
above. Whether the period taken for such deposit is reasonable or not, is a
question of fact to be determined based on the facts and circumstances. In
the present case, first defendant and her husband who were the plaintiffs in
O.S. No.5500 of 1983, failed to establish any satisfactory reason for the
delay in depositing the balance sale consideration. Be that as it may, I.A.
No.445 of 1991 was allowed and the Ex-parte Decree was rescinded, and,
pursuant to the Order passed therein, the defendants 10 and 11 deposited
the interest amount into Court. Thus, the Order passed in I.A. No. 445 of
1991 has attained finality and, therefore, the same cannot be reopened or
questioned in the present Suit. Accordingly, Substantial Questions of Law
Nos. (ii) and (iii) are answered.
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25. It is discerned that first defendant herein and her husband,
pursuant to the Ex-parte Decree, had deposited the balance sale
consideration of Rs.35,724.40/- vide Challan No.623 dated December 22,
1987 to the credit of O.S. No.5500 of 1983. Further, the tenth defendant
herein had deposited a sum of Rs.25,185/- towards interest as per the Order
passed in I.A. No.445 of 1991 vide Challan No.475 dated November 11,
1991. Both the deposits got lapsed and were eventually remitted to the
Government account on March 31, 1994 and March 31, 1997 respectively.
The defendants 1 to 9 are entitled to the same. If they file an appropriate
application in this regard, the Court may consider the same as per law.
CONCLUSION:
26. Resultantly, the Second Appeal is dismissed. The
Judgments and Decrees of the First Appellate Court and the Trial Court are
confirmed. In view of the facts and circumstances of this case, there shall
be no order as to costs. Consequently, connected civil miscellaneous
petition(s) if any shall stand closed.
01 / 09 / 2026
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
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Note to Registry : In the Second Appeal's cause title, the third respondent /
tenth defendant namely Rajamanickam who is actually the son of
Subramani Gramani has been erroneously mentioned as the wife of
Subramani Gramani. Registry shall carry out the necessary amendment
before issuing certified copy.
To
1.The II Additional Judge
City Civil Court
Chennai.
2.The VII Assistant Judge
City Civil Court
Chennai.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A. NO.2186 OF 2004
01 / 09 / 2026
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