MEHABOOBSAB IBRAHIM KHALIFA, vs SMT. SONAVVA W/O SADASHIV KORISHETTI

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD

TH
DATED THIS THE 16 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE M.G.S. KAMAL

CIVIL REVISION PETITION NO. 100074 OF 2022
C/W
WRIT PETITION NO. 104369 OF 2023 (GM-CPC)

IN CRP NO.100074/2022:
BETWEEN:

MEHABOOBSAB IBRAHIM KHALIFA,
AGE. 72 YEARS, OCC. AGRICULTURE,
R/O. NEAR PHARSI HALLA,
MIRAJ ROAD, ATHANI, DIST. BELAGAVI-591304.

…PETITIONER
(BY SRI SANGRAM S. KULKARNI, ADVOCATE)

AND:

1. SMT. SONAVVA W/O SADASHIV KORISHETTI
AGE. 62 YEARS, OCC. HOUSEWIFE,
R/O. MADABHAVI ROAD, ATHANI,
DIST. BELAGAVI-591304.

SHRI AKBAR S/O IBRAHIM KHALIFA
SINCE DECEASED BY HIS LR’S

2. SMT. HAJARATHI W/O AKBAR KHALIFA
AGE. 67 YEARS, OCC. HOUSEWIFE,
R/O. NEAR PHARSI HALLA, MIRAJ ROAD,
ATHANI, DIST. BELAGAVI-591304.

3. SHRI AYUB S/O AKBAR KHALIFA
AGE. 48 YEARS, OCC. AGRICULTURE,
R/O. NEAR PHARSI HALLA, MIRAJ ROAD, ATHANI,
DIST. BELAGAVI-591304.

4. SHRI MUSAALI S/O AKBAR KHALIFA
AGE. 42 YEARS, OCC. AGRICULTURE,
R/O. NEAR PHARSI HALLA,
MIRAJ ROAD, ATHANI, DIST. BELAGAVI-591304.
SAROJA
HANGARAKI

Digitally signed by
SAROJA HANGARAKI
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH

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5. SMT. JAHIDA W/O AKBAR MULLA
AGE. 50 YEARS, OCC. HOUSEWIFE,
R/O. MALABAD, TQ. ATHANI, DIST. BELAGAVI.

6. SMT. FATIMA W/O SALIM KHAN
AGE. 42 YEARS, OCC.
R/O. NEAR PHARSI HALLA,
MIRAJ ROAD, ATHANI, DIST. BELAGAVI-591304.

7. SHRI HARUNSAB IBRAHIM KHALIFA
AGE. 66 YEARS,
R/O. NEAR KABRASTAN MASJID, ISLAMPUR
TQ. WALWA, DIST. SANGLI-415409
STATE- MAHARASTRA.

SMT. BAYAMMA W/O IBRAHIM KHALIFA
DIED ON 03.08.2013

SHRI BASHIR IBRAHIM KHALIFA
DIED ON 17.12.1978
…RESPONDENTS
(BY SRI. G.B. SHASTRY, ADVOCATE FOR
SRI. S.A. SONDUR, ADVOCATE FOR R1;
NOTICE TO R2,R3 AND R6 IS HELD SUFFICIENT;
NOTICE TO R4,R5 AND R7 IS SERVED)

THIS CRP IS FILED UNDER SEC.115 OF CPC, PRAYING TO,
ALLOW THE TOP NOTED CIVIL REVISION PETITION AND SET ASIDE
THE ORDER DATED 12.04.2022 PASSED BY THE EXECUTING COURT
PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
ATHANI, IN EP NO.104/2014 IN THE INTEREST OF JUSTICE AND
EQUITY.

IN WP NO.104369/2023 :
BETWEEN:

MEHBOOB IBRAHIM KHALIFA
AGE. 72 YEARS, OCC. AGRICULTURE,
R/O. NEAR PHARSI HALLA, MIRAJ ROAD,
ATHANI, DIST. BELAGAVI-591304.
...PETITIONER
(BY SRI SANGRAM S. KULKARNI, ADVOCATE)

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AND:

1. SMT. SONAVVA
W/O SADASHIV KORISHETTI
AGE. 62 YEARS, OCC. HOUSEWIFE,
R/O. MADABHAVI ROAD,
ATHANI, DIST. BELAGAVI-591304.

SHRI AKBAR S/O IBRAHIM KHALIFA
SINCE DECEASED BY HIS LR’S

2. SMT. HAJARATHI W/O AKBAR KHALIFA
AGE. 67 YEARS, OCC. HOUSEWIFE,
R/O. NEAR PHARSI HALLA,
MIRAJ ROAD, ATHANI, DIST. BELAGAVI-591304.

3. SHRI AYUB S/O AKBAR KHALIFA
AGE. 48 YEARS, OCC. AGRICULTURE,
R/O. NEAR PHARSI HALLA,
MIRAJ ROAD, ATHANI, DIST. BELAGAVI-591304.

4. MUSAALI S/O AKBAR KHALIFA
AGE. 42 YEARS, OCC. AGRICULTURE,
R/O. PHARSI HALLA, MIRAJ ROAD, ATHANI,
DIST. BELAGAVI-591304.
5. SMT. JAHIDA W/O AKBAR MULLA
AGE. 50 YEARS, OCC. HOUSEWIFE,
R/O. MALABAD, ATHANI, DIST. BELAGAVI-591304.

6. SMT. FATIMA W/O SALIM KHAN
AGE. 42 YEARS, OCC.
R/O. NEAR PHARSI HALLA,
MIRAJ ROAD, ATHANI, DIST. BELAGAVI-591304.

7. SHRI HARUNSAB IBRAHIM KHALIFA
AGE. 66 YEARS, OCC.
R/O. NEAR KABRASTAN MASJID,
ISLAMPUR, TQ. WALWA, DIST. SANGLI-416406.

SMT. BAYAMMA W/O IBRAHIM KHALIFA
DIED ON 03-08-2013

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SHRI BASHIR IBRAHIM KHALIFA
DIED ON 17-12-1978.
...RESPONDENTS
(BY SRI. G.B. SHASTRY, ADVOCATE FOR
SRI. S.A. SONDUR, ADVOCATE FOR R1;
NOTICE TO R4,R5 & R7 IS SERVED;
NOTICE TO R2,R3 AND R6 IS HELD SUFFICIENT)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF
CERTIORARI AND QUASH THE IMPUGNED ORDER DATED
12/04/2022 PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE
AND JMFC, ATHANI IN E.P.NO.104/2014 VIDE ANNEXURE-C ON IA
NO.3 AND ETC.

THE CRP AND THE WP COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL ORDER

1. The Civil Revision Petition and the connected Writ Petition
are taken up together for hearing and final disposal by
this common order.

2. Both the proceedings arise out of the orders dated
12.04.2022 passed by the Court of the Principal Civil
Judge and Judicial Magistrate First Class, Athani, in E.P.
No. 104/2014.

3. The Civil Revision Petition is directed against the order
rejecting the application filed by the petitioner under
Section 28 of the Specific Relief Act, 1963, seeking

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rescission of the agreement of sale dated 28.04.1983.
The connected Writ Petition in WP.No.104369/2023
challenges the order permitting the respondent to deposit
the balance sale consideration of ₹10,000/- in terms of
the decree passed in the suit.

4. In both these proceedings have been instituted by the

common petitioner, who is the judgment-debtor in O.S.
No. 378/1995. The said suit was instituted by the
respondent herein, as plaintiff, against the petitioner
seeking specific performance of the agreement of sale
dated 28.04.1983.

5. The suit came to be disposed of on 01.09.2008. The
operative portion of the judgment and decree passed by
the Trial Court reads as follows:
“:DzÉÃ±À:

1. zÁªÉAiÀÄ£ÀÄß RZÀÄð ¸À»vÀ ¥ÀÅgÀ¸ÀÌj¸À ÁVzÉ.

2. ¥ÀæwªÁ¢AiÀÄgÀÄ G½zÀ ªÉÆvÀÛªÁzÀ gÀÆ. 10,000/- ªÀ£ÀÄß
ªÁ¢AiÀÄjAzÀ ¥ÀqÉzÀÄ zÁªÁ D¹ÛAiÀÄ §UÉÎ CAzÀgÉ CxÀtÂ jA.¸À.
¸ÀASÉå 1642/1+2 8 JPÀgÉ 10 UÀÄAmÉAiÀÄ°è zÀQët §¢AiÀÄ 4
JPÀgÉ «¹ÛÃtðzÀ F PÉ¼ÀV£À ZÀPÀÄÌ§A¢ EgÀÄªÀ

¥ÀÇªÀðPÉÌ : ºÀÄ¸À£ï ¸Á¨ï ¸ÀÄ ÁÛ£ï ¸Á¨ï R°Ã¥sÀ FvÀ£À d«ÄÃ£ÀÄ.
¥À²ÑªÀÄPÉÌ : GªÀiÁtÂAiÀÄ d«ÄÃ£ÀÄ.
GvÀÛgÀPÉÌ : ¸À¢æ j.¸À. ¸ÀASÉå AiÀÄ°è G½zÀ 4 JPÀgÉ 10 UÀÄAmÉ.

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zÀQëtPÉÌ : CxÀtÂ vÁAUÀr gÀ¸ÉÛ.

eÁUÀzÀ §UÉÎ ªÁ¢AiÀÄ ¥ÀgÀªÁV ¢£ÁAPÀ 28.04.1983 gÀAzÀÄ
ªÁ¢AiÀÄ ¥ÀgÀªÁV §gÉzÀÄPÉÆlÖ PÀæAiÀÄ PÀgÁj£À C£ÀéAiÀÄ F
¢£ÁAPÀ¢AzÀ MAzÀÄ wAUÀ¼À M¼ÀUÁV RjÃ¢ ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄ
PÉÆqÀ¨ÉÃPÀÄ.

3. MAzÀÄ ªÉÃ¼É ¥ÀæwªÁ¢AiÀÄgÀÄ F ªÉÄÃ É ºÉÃ½zÀAvÉ RjÃ¢
¥ÀvÀæªÀ£ÀÄß §gÉzÀÄ PÉÆqÀzÉÃ EzÀÝ°è ªÀÄvÀÄÛ G½zÀ ªÉÆvÀÛªÀ£ÀÄß
¥ÀæwªÁ¢AiÀÄgÀÄ ¥ÀqÉAiÀÄ®Ä ¨ÁgÀzÉÃ EzÀÝ°è £ÁåAiÀiÁ®AiÀÄzÀ°è oÉÃªÀtÂ
ElÄÖ ªÁ¢AiÀÄÄ £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄSÉÃ£À RjÃ¢ ¥ÀvÀæªÀ£ÀÄß vÀ£Àß
¥ÀgÀªÁV §gÉ¹ PÉÆ¼Àî®Ä ºÀPÀÌ£ÀÄß ºÉÆA¢gÀÄvÁÛ¼É.

4. RjÃ¢ ¥ÀvÀæªÀ£ÀÄß FV£À ªÀiÁgÀÄPÀmÉÖ zsÁgÀuÉUÉ
C£ÀéAiÀÄªÀªÁUÀÄªÀAvÉ CUÀvÀå oÀ¸É PÁUÀzÀzÀ ªÉÄÃ É §gÉAiÀÄvÀPÀÌzÀÄÝ.

5. PÀbÉÃjAiÀÄÄ rQæ vÀAiÀiÁj¸ÀÄªÀAvÉ DzÉÃ²¸À ÁVzÉ.”

6. In terms of the aforesaid decree, the petitioner herein
was directed to execute the sale deed in favour of the
respondent within one month. In the event of failure on
the part of the petitioner to execute the sale deed, the
respondent was permitted to deposit the balance sale
consideration before the Executing Court and seek
execution of the sale deed through the process of the
Court.

7. The petitioner thereafter preferred Regular Appeal No.
52/2017, which came to be dismissed. Challenging the
same, the petitioner preferred Regular Second Appeal No.
100176/2023, which is stated to have been dismissed for

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non-prosecution. It is further stated that an application
seeking restoration of the said Regular Second Appeal
has been filed and same is pending consideration.

8. In the meantime, E.P. No. 104/2014 came to be filed on
02.09.2014 by the respondent. Subsequently, on
06.12.2018, the respondent filed an application seeking
permission to deposit the balance sale consideration. On
23.02.2019, the petitioner herein filed an application
under Section 28 of the Specific Relief Act, 1963, seeking
rescission of the contract.

9. By the impugned order dated 12.04.2022, the application
filed by the petitioner seeking rescission of the contract
came to be rejected, whereas the application filed by the
respondent seeking permission to deposit the balance
sale consideration came to be allowed.

10. Sri. Sangram S Kulkarni, learned counsel for the
petitioner, relying upon the judgment of the Hon’ble Apex
Court in the case of Anand Narayan Shukla v. Jagat
Dhari , reported in 2026 SCC Online SC 827 , submits
that the Executing Court ought not to have permitted the

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respondent to deposit the balance sale consideration
without examining the requirements contemplated under
Section 28 of the Specific Relief Act, 1963.

11. Learned counsel further submits that the Court was
required to examine whether the respondent was ready
and willing to perform his obligations under the decree
and whether the delay in depositing the balance sale
consideration was attributable to his wilful negligence.
Referring to paragraph 33 of the aforesaid judgment,
learned counsel further submits that an application
seeking extension of time for deposit of the balance sale
consideration was required to be treated as an application
in the suit and numbered accordingly.

12. On the merits of the matter, learned counsel
submits that the decree was passed on 01.09.2008,
whereas the execution petition was filed on 02.09.2014
and the application seeking permission to deposit the
balance sale consideration was filed on 06.12.2018.
According to learned counsel, the delay demonstrates the
absence of readiness and willingness on the part of the

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respondent to perform his obligations under the decree.
It is contended that the Trial Court failed to examine the
reasons for the delay and the conduct of the decree-
holder before permitting the deposit. On these grounds,
learned counsel for the petitioner seeks allowance of the
petitions.

13. Per contra , Sri G.B. Shastry, learned counsel
appearing for respondent No.1, relying upon the
judgment of the Hon’ble Apex Court in the case of Ram
Lal v. Jarnail Singh (now deceased) through its LRs
& Ors., reported in 2025 SCC Online SC 584 ,
particularly paragraphs 44 to 50 thereof, submits that
mere failure to deposit the balance sale consideration
within the time stipulated in the decree would not, by
itself, result in rescission of the contract.

14. Learned counsel submits that Section 28 of the
Specific Relief Act, 1963, confers discretion upon the
Court either to rescind the contract or, in an appropriate
case, to extend the time for payment or deposit of the
balance sale consideration. Such discretion is required to

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be exercised judicially, having regard to the conduct of
the parties and the facts and circumstances of the case.
Hence, seeks for dismissal of the petition.

15. Heard and perused the records.

16. In Ram Lal (supra), the Hon’ble Apex Court
considered the nature of the jurisdiction exercised by the
Court under Section 28 of the Specific Relief Act, 1963,
and the circumstances in which the time stipulated for
payment or deposit of the balance sale consideration may
be extended. The relevant portion of paragraph 49 of the
aforesaid judgment of the Hon’ble Apex Court reads as
follows:
“49. In the considered view of this Court, the
Appellate Court, after deciding the appeal on merits,
could have called upon the plaintiff to deposit the
balance sale consideration by fixing a time limit. This
would have at least given an opportunity to the
plaintiff to fulfil his obligation. The non-payment of
the balance sale consideration within the time period
fixed by the Trial Court does not amount to
abandonment of the contract and consequent
rescinding of the same. The real test must be to see
if the conduct of the plaintiff will amount to a positive
refusal to complete his part of the contract. There
must be an element of wilful negligence on the part
of the plaintiff before a Court proceeds to invoke
Section 28 of the Act and rescind the contract. (See:
Krishnamoorthy v. Shanmugasundaram & Anr.,
2022 SCC OnLine Mad 963)”

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17. In paragraph 50 of the aforesaid judgment, the
Hon’ble Apex Court further explained the factors to be
considered while exercising discretion to extend the time
for deposit of the balance sale consideration. The relevant
portion reads as follows:
“50. This litigation is an eye-opener for the appellate
courts reminding that they owe a duty to comply with
the provisions of Order XX Rule 12A of the CPC.
Where an appeal is filed against the decree passed by
the trial court and the appeal is disposed of, the
appellate court should specify time to deposit the
balance sale consideration. It is too much to say that
since the trial court had granted two months time to
the decree holder to deposit the balance sale
consideration the same time period would apply even
to the decree that may be drawn by the appellate
court. What is executable is the decree passed by the
appellate court. The appellate court owes a duty to
specify the time period. If during the specified time
period the decree holder is not in a position to deposit
the balance sale consideration or, in other words, fails
to deposit the balance sale consideration and later
upon expiry of the specified time period seeks
permission to deposit, then it would be within the
discretion of the trial court to grant further time to
deposit the balance sale consideration or decline. This
discretion has to be exercised judiciously keeping in
mind various factors like bona fide of the decree
holder, the cause for failure to deposit the balance
sale consideration in time, the length of delay and also
the equities that might have been created during the
interregnum period in favour of the judgment debtor.
It is the cumulative effect and considerations of such
factors that should weigh with the court concerned
while permitting the decree holder to deposit the
balance sale consideration beyond the time period

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that might have been prescribed by the trial court in
its final decree.”

18. The aforesaid judgment makes it clear that mere
expiry of the time stipulated in the decree or delay in
depositing the balance sale consideration does not, by
itself, determine the question of rescission of the
contract. The Court is required to consider the conduct of
the decree-holder, the reasons for the delay and the
other relevant circumstances before exercising its
discretion under Section 28 of the Specific Relief Act,
1963.

19. Learned counsel for the parties have also referred
to the judgment of the Hon’ble Apex Court in the case of
Anand Narayan Shukla (supra) , wherein the Hon’ble
Apex Court considered, inter alia , the doctrine of merger,
the effect of dismissal of an appeal for non-prosecution
and the scope of the Court’s jurisdiction under Section 28
of the Specific Relief Act, 1963. Paragraphs 21 and 22 of
the aforesaid judgment reads as follows:
“21.On the issue of merger of the trial court decree
in the appellate court decree, the law is settled. The
doctrine of merger is based on the principle of propriety

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in the hierarchy of the justice-delivery system. The said
doctrine postulates that there cannot be more than one
operative decree governing the same subject matter at
a given point of time. Once the superior Court has
disposed of the lis before it either way - whether the
decree or order under appeal is set aside or modified or
simply confirmed, it is the decree or order of the
superior Court, tribunal or authority which is the final,
binding and operative decree or order wherein merges
the decree or order passed by the Court, tribunal or the
authority below. The doctrine of merger does not make
a distinction between an order of reversal, modification
or an order of confirmation passed by the appellate
authority/court. However, the doctrine of merger would
only apply in a case when a higher forum entertains an
appeal or revision and passes an order on merit and not
when the appeal or revision is dismissed on the ground
of delay in filing the same.

22. Section 2 (2) of the Code of Civil Procedure,
1908, which defines a decree, specifically excludes an
order of dismissal in default from the ambit of a decree.
As a sequitur, for there to be a merger of the trial court
decree in the appellate court decree, there must be an
adjudication on merits, though it is immaterial whether
the decree or order under appeal is set aside or
modified or simply confirmed. In our view, dismissal of
the appeal for non-prosecution would not merge the
trial court decree in the order of the appellate court. In
the present case, there is no dispute that the appeal of
judgment-debtor was dismissed for non-prosecution;
therefore, in our view, there would be no merger of the
trial court decree in the appellate court order. Issue (A)
is answered accordingly.”

20. In the present case, it is stated that Regular Second
Appeal No.100176/2023, preferred by the petitioner,
came to be dismissed for non-prosecution and that an
application seeking restoration of the said appeal is

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pending consideration. The legal effect of the dismissal of
the appeal and the pendency of the restoration
application shall be considered in accordance with law,
insofar as the same are relevant to the applications under
consideration.

21. In paragraph 23 of Anand Narayan Shukla
(supra), the Hon’ble Apex Court considered the effect of
an order permitting the decree-holder to deposit the
balance sale consideration on the judgment-debtor’s right
to seek rescission of the contract under Section 28 of the
Specific Relief Act, 1963. The relevant portion of
paragraph 23 of the aforesaid judgment reads as follows:
“23. The next argument on behalf of the appellant
is that once the Execution Court permitted the
appellant to deposit the balance consideration even
after expiry of the period fixed by the trial court
decree, it would be deemed that the Court had
extended the time to deposit. Therefore, the
application to rescind the contract for non-deposit
was not maintainable and ought to have been
dismissed. On this aspect, we notice that the order
of the Execution Court, dated 26.11.2020,
permitting deposit did not determine the rights of
the parties qua rescission of the contract. Rather,
the deposit was permitted just to test the bona
fides of the decree holder in pursuing the execution.
Though such deposit becomes a relevant factor for
determining whether the decree holder had been
throughout ready and willing to perform his

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obligation under the contract/ decree, it would not
extinguish the right of the judgment-debtor to seek
rescission of the contract. We, therefore, hold that
by permitting the decree holder to make deposit to
show his bona fides, the Court did not foreclose the
right of the judgment debtor to seek rescission of
the contract under Section 28 of the 1963 Act.
Issue (B) is decided accordingly.”

22. The aforesaid decision clarifies the legal position
concerning the judgment-debtor’s right to seek rescission
of the contract notwithstanding an order permitting
deposit of the balance sale consideration. The application
seeking rescission is required to be considered in
accordance with law, having regard to the facts and
circumstances of the case.

23. The Hon’ble Apex Court has further summarised the
principles governing the exercise of jurisdiction under
Section 28 of the Specific Relief Act, 1963, in paragraph
33 of Anand Narayan Shukla ( supra ). Paragraph 33 of
the aforesaid judgment reads as follows:
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 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

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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.
(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

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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.
(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.”

24. The aforesaid principles have direct bearing on the
applications involved in the present proceedings. The

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application seeking rescission of the contract and the
application seeking permission to deposit the balance sale
consideration are required to be considered in accordance
with Section 28 of the Specific Relief Act, 1963, and the
principles laid down by the Hon’ble Apex Court in the
aforesaid decisions.

25. In the present case, the decree for specific
performance was passed on 01.09.2008. The execution
petition was filed on 02.09.2014, and the decree-holder
filed the application seeking permission to deposit the
balance sale consideration on 06.12.2018. The judgment-
debtor filed the application seeking rescission of the
contract on 23.02.2019. The balance sale consideration
referred to in the proceedings is ₹10,000/-.

26. The aforesaid chronology, particularly the period
between the passing of the decree and the filing of the
application seeking permission to deposit the balance sale
consideration, is a relevant circumstance requiring
examination. However, the consequences of the delay
cannot be determined merely by reference to the dates.

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The reasons for the delay, the conduct of the decree-
holder and the circumstances bearing upon the bona fides
of the parties require consideration.

27. The Executing Court is required to examine whether
the delay in depositing the balance sale consideration is
attributable to wilful negligence or conduct amounting to
a positive refusal to perform the obligations under the
decree. It is also required to consider whether the
circumstances warrant rescission of the contract or
extension of time for deposit of the balance sale
consideration.

28. The Executing Court shall further consider whether
any rights or equities have arisen in favour of the
judgment-debtor during the intervening period and
whether such circumstances have any bearing on the
relief to be granted.

29. The discretion under Section 28 of the Specific
Relief Act, 1963, is required to be exercised on a
cumulative consideration of the relevant circumstances
and in accordance with law.

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30. Upon consideration of the impugned orders in the
light of the aforesaid decisions, this Court is of the view
that the questions relating to the reasons for the delay,
the conduct and bona fides of the decree-holder, the
existence or otherwise of wilful negligence and the
equities between the parties require fresh consideration
by the Executing Court.

31. Without expressing any opinion on the merits of the
rival contentions, this Court deems it appropriate to remit
both applications for fresh consideration in accordance
with law.

32. Accordingly, the following order is passed:
ORDER
(i) The Civil Revision Petition No.100074/2022 and the
connected Writ Petition No.104369/2023 are allowed .
(ii) The impugned orders dated 12.04.2022 passed by
the Court of the Principal Civil Judge and Judicial
Magistrate First Class, Athani, in E.P. No.104/2014,
are hereby set aside.

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(iii) The application filed by the petitioner under
Section 28 of the Specific Relief Act, 1963, seeking
rescission of the contract, and the application filed by
respondent No.1 seeking permission to deposit the
balance sale consideration are remitted to the
Executing Court for fresh consideration in accordance
with law.
(iv) The Executing Court shall afford the parties a
reasonable opportunity of hearing and consider the
applications in the light of the principles laid down by
the Hon’ble Apex Court in the case of Ram Lal v.
Jarnail Singh (now deceased) through its LRs &
Ors. , reported in 2025 SCC Online SC 584, and
Anand Narayan Shukla v. Jagat Dhari , reported in
2026 SCC Online SC 827.
(v) The Executing Court shall consider all relevant
facts and circumstances, including the reasons for the
delay, the conduct and bona fides of the decree-
holder, whether the delay amounts to wilful negligence
and the equities, if any, arising in favour of the

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judgment-debtor, and thereafter pass appropriate
orders in accordance with law.
(vi) The allowing of these petitions and the setting
aside of the impugned orders shall not be construed
as an expression of opinion on the merits of the
dispute.
(vii) No opinion is expressed on the merits of the rival
contentions. All contentions are left open for
consideration by the Executing Court.

Sd/-
(M.G.S. KAMAL)
JUDGE

VB/CT:CMU/LIST NO.: 1 SL NO.: 37