PUNDALIKAPPA S/O MAHADEVAPPA NADUVINAHALLI vs SMT. SUMAN W/O GAJANAN HONGAL
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 17 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 102544 OF 2026 (GM-CPC)
BETWEEN:
1. PUNDALIKAPPA S/O MAHADEVAPPA NADUVINAHALLI
AGE 45 YEARS, OCC. AGRICULTURE,
R/O HIREULLIGERI VILLAGE,
TQ. SAUNDATTI, DIST. BELAGAVI.
2. UMESH S/O MAHADEVAPPA NADUVINAHALLI
AGE 43 YEARS, OCC. AGRICULTURE,
R/O HIREULLIGERI VILLAGE,
TQ. SAUNDATTI, DIST. BELAGAVI.
…PETITIONERS
(BY SRI. SHIVRAJ BALLOLI, ADVOCATE)
AND:
1. SMT. SUMAN W/O GAJANAN HONGAL
AGE 41 YEARS, OCC. HOUSEHOLD WORK,
R/O H.NO.221/2, KORVI GALLI, BELAGAVI 590005.
2. SMT. VIJAYLAXMI W/O YALLAPPA SANGAPPANAVAR
AGE 38 YEARS, OCC. HOUSEHOLD WORK,
R/O HIREULLIGERI VILLAGE,
TQ. SAUNDATTI, DIST. BELAGAVI 591126.
Digitally signed
by SAROJA
HANGARAKI
Location: high
court of
karnataka,
dharwad bench
…RESPONDENTS
(BY SRI. SANTOSH B. MALLIGAWAD, ADVOCATE FOR R1 AND R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 11/03/2026 PASSED ON IA NO. II/2 IN EP
NO. 16/2025 BY THE LEARNED SENIOR CIVIL JUDGE JMFC
NAVALGUND VIDE ANNEXURE-A AND ETC.
THIS WP COMING ON FOR PRELIMINARY HEARING IN ‘B’
GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
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ORAL ORDER
1. Petitioners are the judgment debtors before this Court,
being aggrieved, by the order dated 11.03.2026 passed on
I.A.No.2 in E.P.No.16/2025 on the file of Senior Civil
Judge, Navalgund, in terms of which application filed by
the decree-holder respondents under Order XXI Rule 1
read with Section 151 of the Code of Civil Procedure,
seeking permission to deposit the balance sale
₹
consideration amount of 37 ,907/- has been allowed.
2. Brief facts of the case are that, a suit in O.S.No.161/1996
came to be filed by the respondents herein for relief of
specific performance of the agreement of sale against the
petitioners herein, which was decreed on 05.07.2005. As
against the said decree, the petitioners herein preferred
regular first appeal in RFA No.1292/2005, which was partly
allowed by judgment decree dated 21.09.2012. As against
the said judgment and decree, the respondents herein
preferred Civil Appeal No.13948/2015, which came to be
allowed on 15.05.20025, setting aside the judgment and
decree passed in the regular first appeal and restoring the
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original judgment and decree passed by the trial court in
its entirety.
3. In the aforesaid judgment and decree in O.S.No.161/1996,
the trial Court had issued the following directions:
“Suit of the plaintiff is decreed with costs. Defendant
No.2 and 3 are hereby directed to execute sale deed in
respect of suit lands after paying necessary amount to the
competent authority and after getting permission from the
competent authority, in favour of the plaintiff by receiving
balance considerate amount of Rs.83,750/- from the
plaintiff within three months from the date of this order.
The sale deed executed by defendant No. 2 and 3 in favour
of defendant No. 4 dated 9/5/1994 is hereby set aside.
Further, defendant No. 4 to 6 are also directed to join with
defendant No. 2 and 3 in executing the sale deed in favour
of plaintiff in respect of suit lands bearing survey No. 85/3b
measuring 3 acres 23 guntas assessed at Rs.6.25 ps of
Sirur village. In the event of defendants failure to execute
the sale deed then the plaintiff is at liberty to get executed
the sale deed of suit lands through court process.”
4. Thus, in view of the confirmation of the aforesaid judgment
and decree by the Apex Court, the
decree-holder/respondents were required to deposit the
said amount.
5. The decree-holders/respondents herein initiated execution
proceedings petition in E.P.No.16/2025 on 17.06.2025.
Thereafter, the respondents have filed the present
application in I.A.No.2 on 20.01.2026 seeking permission
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to deposit the balance consideration amount of
Rs.37,907/-. The said application has been allowed.
6. Learned counsel for the petitioners, assailing the said
order, places reliance upon the judgment of the Apex
Court in Prem Jeevan v. K.S.Venkata Raman and
1
Another , particularly paragraphs 9 and 11, which reads
as under:
“9. In absence of the said time being extended, the
decree-holder could execute the decree only by making the
payment of the decretal amount to the judgment-debtor or
making the deposit in the court in terms of the said decree.
In the present case, neither the said deposit was made
within the stipulated time nor extension of time was sought
or granted and also no explanation has been furnished for
the delay in the making of the deposit. No doubt, as
contended by the learned counsel for the decree-holders,
relying on the judgment of this Court in Ramankutty Guptan
3
v. Avara [Ramankutty Guptan v. Avara , in an appropriate
case the court which passed the decree could extend the
time as envisaged in the Specific Relief Act, 1963. In the
present case no such steps have been taken by the decree-
holders.
11. Section 28 of the Specific Relief Act is as follows:
“ 28. Rescission in certain circumstances of
contracts for the sale or lease of immovable
property, the specific performance of which has
been decreed .—(1) Where in any suit a decree for
specific performance of a contract for the sale or lease of
immovable property has been made and the purchaser
or lessee does not, within the period allowed by the
decree or such further period as the court may allow,
pay the purchase money or other sum which the court
1
(2017) 11 SCC 57
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has ordered him to pay, the vendor or lessor may apply
in the same suit in which the decree is made, to have
the contract rescinded and on such application the court
may, by order, rescind the contract either so far as
regards the party in default or altogether, as the justice
of the case may require.
(2) Where a contract is rescinded under
sub-Section (1), the court—
(a) shall direct the purchaser or the lessee, if he
has obtained possession of the property under the
contract, to restore such possession to the vendor
or lessor, and
(b) may direct payment to the vendor or lessor
of all the rents and profits which have accrued in
respect of the property from the date on which
possession was so obtained by the purchaser or
lessee until restoration of possession to the vendor
or lessor, and, if the justice of the case so requires,
the refund of any sum paid by the vendee or lessee
as earnest money or deposit in connection with the
contract.
(3) If the purchaser or lessee pays the purchase
money or other sum which he is ordered to pay under
the decree within the period referred to in sub-section
(1), the court may, on application made in the same
suit, award the purchaser or lessee such further relief
as he may be entitled to, including in appropriate cases
all or any of the following reliefs, namely—
(a) the execution of a proper conveyance or
lease by the vendor or lessor;
(b) the delivery of possession, or partition and
separate possession, of the property on the
execution of such conveyance or lease.
(4) No separate suit in respect of any relief which
may be claimed under this section shall lie at the
instance of a vendor, purchaser, lessor or lessee, as the
case may be.
(5) The costs of any proceedings under this section
shall be in the discretion of the court.”
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7. He also relies upon the Judgment of this Court in the case
2
of T.L.Rajagopal v. S.N.Shivakumar , wherein at
paragraph 13 and 17 this Court has held as
“13. Therefore, to invoke the above provision, the
person who has obtained a decree for specific performance
ought to have failed to pay the money or other sum which
the Court has ordered him to pay, within the period allowed
by the decree or such further period as the Court may
allow. In such an event the person who has suffered the
decree has a right to apply to the Court in the same suit in
which the decree was passed to have the contract
rescinded. On such an application being made, the Court
may by order rescind the contract either so far as regards
the party in default or altogether, as the justice of the case
may require. Once such an order for rescission of contract
is made, the Court shall direct the purchaser or the lessee,
if, he has obtained the possession of the property under
the contract, to restore such possession to the vendor or
lessor and also may direct payment to the vendor or lessor
to pay the rents and profits which have accrued in respect
of the property from the date on which the possession was
obtained by the purchaser or lessee until restoration of
possession to any vendor or lessor, and if the justice of the
case so requires, the refund of any sum paid by the vendee
or lessee or earnest money or deposit in connection with
the contract.
17. In the light of the ratio laid down in the
aforementioned judgments, the law on the point can be
said to be fairly settled: A decree for specific performance
being in the nature of a preliminary decree, the Court after
passing of the said decree does not become functus officio.
It retains the jurisdiction to conclude the further steps to
be taken in the suit. The decree holder chooses to file an
execution petition for getting the sale deed registered
through the Court when the defendant who suffered the
decree fails to obey the same. Though called ‘execution
proceedings’, it is nothing but continuation of the original
suit. In a suit for partition, after the preliminary decree is
2
ILR 2014 KAR 4035
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passed, to give effect to the preliminary decree, it is
necessary to initiate final decree proceedings. But in a suit
for specific performance it is called as ‘execution
proceedings’. Thus when the Court that passed the decree
for specific performance and the Court executing the said
decree are one and the same, Section 28 of the Act gives
equal opportunity to the parties to the suit. If the
plaintiff/decree holder for any reason is unable to deposit
the balance sale consideration, he is given a right to apply
to the Court that passed the decree seeking extension of
time to deposit the money and the Court is vested with the
power to grant such extension. At the same time when the
plaintiff commits default in making payment, a right is
conferred upon the defendant/judgment debtor to approach
the Court under Section 28 of the Act seeking rescission of
the contract. Here again the Court has the discretion to
rescind the contract notwithstanding the fact that the
decree has attained finality.”
8. Referring to the aforesaid judgments, learned counsel for
the petitioners vehemently submits that, since the
respondents had not sought for extension of time for
payment of money as required, there is no automatic
extension which should eventually enure to the benefit of
the decree-holder, resulting in rescission of the contract.
9. Per contra, learned counsel appearing for the respondents
relies upon the judgment of the Apex Court in the case of
3
Anand Narayan Shukla v. Jagat Dhari and
3
2026 SCC OnLine SC 827
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Ishwar(Since Deceased) thr. Lrs and Others v. Bhim
4
Singh and Another .
10. Relying upon paragraph 33 of the judgment in the case of
Anand Narayan Shukla (supra) , learned counsel for the
respondents submits that there is no willful delay or
negligence on the part of the respondents in making the
deposit. Application was filed only as a formal requirement.
The Civil Appeal was disposed of before the Apex Court on
15.05.2025 and the respondents filed the execution
petition without any delay and the application seeking
permission is also well within the reasonable time
thereafter.
11. Heard. Perused the records.
12. Paragraph 33 of the judgment of the Apex Court in the
case of Anand Narayan Shukla (supra)
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 therefore, till the
deed is executed pursuant to the decree, the Court that
4
2024 SCC OnLine SC 2338
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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 therefore.
(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
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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.”
13. The aforesaid paragraph more particularly point No.iv of
the Judgment of Anand Narayan Shukla (supra) , makes
it clear that an application seeking extension has no formal
format. It can even be oral. All that the Court required to
see is whether there any willful negligence or laxity on the
part of the decree-holder/respondent in depositing the
amount.
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14. The said Judgment also takes into consideration the earlier
judgment of the same Court in Ishwar(Since Deceased)
thr. Lrs (supra) .
15. The dates noted above do not indicate there appears to be
any willful default on the part of the respondents.
16. Hence, the petition lacks merit. The petition is dismissed .
Sd/-
(M.G.S. KAMAL)
JUDGE
Rhr/-CT:VP
LIST NO.: 1 SL NO.: 45