P.S.K.Shanmugarajan (Died) vs V.Kumar

2026:MHC:4449
CRP No. 6750 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03 .11.2026
CORAM
THE HON'BLE MR.JUSTICE S. SOUNTHAR
CNR:{HCMA010142922026}
CRP Nos.6750, 6760, 6767 & 6773 of 2026
CMP Nos.29072, 29122, 29142 & 29153 of 2026
C.R.P.No.6750 of 2026
P.S.K.Shanmugarajan (Died)
K.S. Gnanasekaran (Died)
1. Susheela
2. G.Subburaj
3. G.Prabhakaran
4. G.Dharmaraj
..Petitioner(s)
Vs
V.Kumar
..Respondent(s)
CRP No. 6767 of 2026
CNR:{HCMA010143022026}
1. Susheela
2. G.Subburaj
3. G.Prabhakaran
4. G.Dharmaraj
..Appellant(s)
Vs
1. P. C. Vishwanathan
2. A.Karuppasamy
..Respondent(s)
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2026:MHC:4449
CRP No. 6750 of 2026
CRP No. 6760 of 2026
CNR:{HCMA010143032026}
1. Susheela
2. G.Subburaj
3. G.Prabhakaran
4. G.Dharmaraj
..Appellant(s)
Vs
1. V. Kumar
2. A.Karuppasamy
..Respondent(s)
CRP No. 6773 of 2026
CNR:{HCMA010143042026}
P. S. K. Shanmugarajan (Died),
K. S. Gnanasekaran (Died),
1. Susheela
2. G.Subburaj
3. G.Prabhakaran
4. G.Dharmaraj
..Appellant(s)
Vs
P. C. Vishwanathan
..Respondent(s)
Prayer in CRP No. 6750 of 2026:- Civil Revision Petition filed under Section
115 of Civil Procedure Code, pleased to set aside the order dated 01.09.2025
passed in E.A.No.2 of 2025 in EP.No.118 of 2017 in O.S.No.146 of 2004 on the
file of learned I Additional Subordinate Judge, Erode and allow the Civil
Revision Petition.
Prayer in CRP No. 6767 of 2026:- Civil Revision Petition filed under Section
115 of Civil Procedure Code, pleased to set aside the order dated 24.09.2025,
passed in I.A.No. 297 of 2020 in Unnumbered AS in ASCFR No.2813 of 2020
on the file of the learned Principal District Judge, Erode and allow the CRP and
thus render justice.
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2026:MHC:4449
CRP No. 6750 of 2026
Prayer in CRP No. 6760 of 2026:- Civil Revision Petition filed under Section
115 of Civil Procedure Code, pleased to set aside the order dated 24.09.2025,
passed in I.A.No.296 of 2020 in Unnumbered AS in ASCFR No.2810 of 2020
on the file of the learned Principal District Judge, Erode and allow the CRP and
thus redner justice.
Prayer in CRP No. 6773 of 2026:- Civil Revision Petition filed under Section
115 of Civil Procedure Code, pleased to set aside the order dated 01.09.2025,
passed in E.A.No.3 of 2025 in E.P.No.114 of 2017 in O.S.No. 148 of 2004 on
the file of the learned I Additional Subordinate Judge, Erode and allow the CRP
and thus render justice.
In all C.R.P’s:-
For Petitioner(s): Mr.R.Bharathkumar
for Mr.R.Murali
COMMON ORDER
C.R.P.Nos.6750 & 6773 of 2026 are filed challenging the order passed by
the trial Court dismissing the applications filed by the petitioners under Section
28 of Specific Relief Act, 1963, seeking rescission of contract on the ground
that respondents / Decree Holders failed to deposit the balance sale
consideration as per the decree for specific performance.
2.C.R.P.Nos.6760 & 6767 of 2026 are filed challenging the order passed
by the First Appellate Court dismissing the applications filed by the petitioners
seeking to condone the delay of 5551 days in filing first Appeal challenging the
judgment and decree passed in suits for specific performance filed by the
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2026:MHC:4449
CRP No. 6750 of 2026
respondents in O.S.Nos.146 & 148 of 2004 on the file of the learned I
Additional Subordinate Judge, Erode.
3.The petitioners herein are legal representatives of one
K.S.Gnanasekaran who was arrayed as second defendant in the suits for specific
performance filed by the respondents. It is seen from the typed set of papers that
respondents filed suits in O.S.Nos.146 & 148 of 2004 seeking specific
performance of two different sale agreements entered with predecessor in
interest of the petitioners namely K.S.Gnanasekaran and the father of said
K.S.Gnanasekaran namely P.S.K.Shanmugarajan. Both the defendants in the
said suits were represented by their power of attorney A.Karuppasamy. The said
suits were decreed on 23.12.2004 granting relief of specific performance as
prayed for by the respondents with a direction to them to deposit balance sale
consideration of Rs.5000/- each. The said decrees were put into execution in
E.P.Nos.114 & 118 of 2017. Since the respondents failed to deposit the balance
sale consideration, applications were filed seeking to condone the delay in
depositing the balance sale consideration and issue challan for deposit of the
amount. The said applications filed by the respondents in E.A.Nos.429 & 430 of
2016 in E.P.Nos.114 & 118 of 2017 were allowed on 13.06.2017. Thereafter ,
the petitioners who are claiming right under the second defendant in the suits
filed appeals challenging the decree passed in the original suits. The appeals
were filed only in the year 2020 with a delay of 5551 days. The condone delay
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CRP No. 6750 of 2026
petitions were dismissed by the First Appellate Court. Aggrieved by the same,
the petitioners have come before this Court.
4.After filing the appeals challenging the original decree with a delay of
5551 days, the petitioners also filed applications under Section 28 of Specific
Relief Act, 1963, seeking rescission of contract. Those applications were
dismissed by the trial Court. The said orders passed by the trial Court are also
challenged in these Revisions.
5.The learned counsel for the petitioners mainly contended the
respondents herein filed suits for specific performance against the predecessor
in interest of the petitioners namely K.S.Gnanasekaran and his father
P.S.K.Shanmugarajan and obtained a collusive decree against them. According
to the learned counsel there was a collusion between the respondents and the
power agent of defendants in the said suits. It is further stated the first defendant
died on 29.01.2011 and the second defendant died on 27.08.2017 and
petitioners acquired knowledge about the suits as well as Execution Petitions
only in the year 2018. The learned counsel also submitted though no time limit
has been prescribed under the decree for specific performance for deposit of
balance sale consideration, the respondents failed to deposit the balance sale
consideration within reasonable time. Ultimately, they filed applications to
condone the delay in depositing the balance sale consideration only in the year
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CRP No. 6750 of 2026
2016. In the said applications also the predecessor in interest of the petitioners
was represented by power agent A.Karuppasamy. According to the petitioners
their predecessor in interest had no knowledge about the suits as well as the
Execution Petitions and entire proceedings was vitiated by collusion between
the respondents / plaintiffs and the power agent A.Karuppasamy.
6.It is seen from the averment filed in support of the condone delay
petitions, the petitioners acquired knowledge about the suits as well as
execution proceedings as early as May 2018. However, appeals by the
petitioners have been filed only in March 2020 along with petitions to condone
the delay of 5551 days. The petitioners have no plausible explanation for the
delay from May 2018 to March 2020. Though it is stated the petitioner’s
predecessor in interest were not aware of the suit proceedings as well as
execution proceedings and there was a collusion between the respondents /
plaintiffs and the power agent A.Karuppaswamy, whether there was any
collusion as alleged and whether the decree is vitiated by fraud etc., are all the
questions to be decided in a properly instituted proceedings based on evidence.
Till date the petitioners have not initiated any proceedings to set aside the
decree passed against their predecessor in interest on the ground of fraud. By
filing appeals challenging the original decree, petitioners are not entitled to
challenge the same on the ground of fraud as it requires evidence. The decree
passed by the trial Court has been decided based on the pleadings and the
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CRP No. 6750 of 2026
evidence already available on record. If it is the case of the petitioners that the
decree obtained by the respondents is vitiated by collusion and fraud, the
petitioners should have filed a suit seeking to set aside the decree on the ground
of fraud by making necessary plea.
7.It is settled law that a plea of fraud shall be specifically pleaded and
meticulously proved by leading cogent evidence. In the case on hand even
though the petitioners alleged collusion between plaintiffs and power agent of
their predecessor in interest namely Karuppasamy, they failed to enter witness
box and depose in support of said plea, for the reasons best known to them. The
plea of fraud cannot be established by filing a mere affidavit without entering
the witness box and facing cross-examination. First of all the petitioners have
not taken any steps to set aside the decree passed in the suit on the ground of
fraud. Further even in the condone delay petitions, they failed to lead any
evidence.
8.Even as per the admitted case, petitioners acquired knowledge about the
suits, decree and execution proceedings as early as May 2018. Till date no steps
have been taken by the petitioners to get the decree set aside by filing
appropriate petitions. Therefore, the reasoning given by the petitioners to
condone the delay in filing the appeals cannot be accepted, especially when the
delay from May 2018 to March 2020 is not explained by the petitioners. The
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CRP No. 6750 of 2026
First Appellate Court rightly observed that the petitioners have the option to
challenge the decree on the ground of fraud in a manner known to law and
refused to condone the delay. I do not find any error in the order passed by the
First Appellate Court refusing to condone the delay of 5551 days in filing the
Appeals. Hence, Civil Revision Petitions in C.R.P.Nos.6767& 6760 of 2026
which are filed against the dismissal of the condone delay petitions are
dismissed.
9.As far as the other two Revisions challenging the dismissal of
applications filed by the petitioners under Section 28 of Specific Relief Act,
1963, seeking rescission of contract are concerned, the learned counsel by
relying on the judgment of the Apex Court in Habban Shah Vs. Sheruddin
reported in (2026) SCC Online SC 814 vehemently contended that respondents
failed to deposit the balance sale consideration as per the decree and hence the
petitioners are entitled to seek rescission of contract.
10.A perusal of the judgment passed in the original suits would indicate
the respondents had been directed to deposit the balance sale consideration of
Rs.5000/- each and get the sale deed executed in their favour. The defendants
have been granted one month time to execute the sale deed. However, the
plaintiffs / respondents failed to deposit the balance sale consideration within
the said period of one month. Subsequently, the respondents filed applications
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seeking to condone the delay and issue challan and those applications were
allowed by order dated 13.06.2017. Till date the petitioners have not challenged
the order passed in the applications filed by the respondents seeking to condone
the delay in depositing the balance sale consideration. The order passed by the
Executing Court permitting the respondents to deposit the amount had attained
finality as it is not challenged by the petitioners. Without challenging the order
passed in applications filed by the respondents seeking to condone the delay in
depositing the amount, petitioners filed the present applications seeking
rescission of contract. When the time fixed by the decree has been extended by
a subsequent order passed on the applications filed by the respondents, the
petitioners are not entitled to maintain the present applications seeking
rescission of contract.
11.In Chanda (Dead) through LR’s Vs. Rattni and Another reported in
(2007) 14 SCC 26 , the Hon’ble Apex Court held that the trial Court has got
power to extend the time for payment of balance sale consideration even if the
decree stipulates that balance amount shall be paid within a particular date and
on failure to deposit the amount the suit would stand dismissed. The relevant
observation reads as follows:-
9.The decree for specific performance has been described
as a preliminary decree. The power under Section 28 of the Act
is discretionary and the Court cannot ordinarily annul the
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decree once passed by it. Although the power to annul the
decree exists yet Section 28 of the Act provides for complete
relief to both the parties in terms of the decree. The Court does
not cease to have the power to extend the time even though the
trial court had earlier directed in the decree that payment of
balance price to be made by certain date and on failure the suit
to stand dismissed. The power exercisable under this Section is
discretionary. [Emphasis supplied by this Court).
12.In Johri Singh Vs. Sukh Pal Singh and others reported in (1989) 4
SCC 403, while considering the power of the Court to extend the time under
Section 148 of Code of Civil Procedure, the Hon’ble Apex Court observed that
the extension can be granted even after expiry of the original time fixed. The
relevant observation reads as follows:-
17.Section 148 deals with enlargement of time and provides:
“Where any period is fixed or granted by the Court for the
doing of any act prescribed or allowed by this Code, the court
may, in its discretion, from time to time, enlarge such period, even
though the period originally fixed or granted may have expired.”
18.This section empowers the court to extend the time fixed by
it even after the expiry of the period originally fixed. It by
implication allows the court to enlarge the time before the time
originally fixed. The use of the word ‘may’ shows that the power is
discretionary, and the court is, therefore, entitled to take into
account the conduct of the party praying for such extension.
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13.In P.R.Yelumalai Vs. N.M.Ravi reported in (2015) 9 SCC 52,
the Hon’ble Apex Court held the extension of time can be granted even after
expiry of the period originally fixed. The relevant observation reads as follows:-
12.Arguments were also made by the learned counsel on
both sides as to which Court had the power to grant extension of
time and several authorities were cited on this point. However, we
find that after the executing court had dismissed the execution
proceeding on the ground of delay in depositing the amount, the
same question was dealt with by the original side of the trial court
as well in the application for extension of time. Since both the
courts have given concurrent findings that the case for extension
of time was not made out, we are of the opinion that dealing with
the question as to which court had the jurisdiction to decide this
point, will be an exercise in futility. It would suffice to say that the
court has the discretion to extend the time upon an application
made by the party required to act within a stipulated time period.
Extension of time can be granted even after the expiry of the period
originally fixed. [ Emphasis supplied by this Court]
14.In the light of the case laws mentioned above it is clear that the Court
has got power to extend the time fixed under the decree even after the expiry of
time. In the case on hand the respondents admittedly filed applications seeking
extension of time and the same were allowed. Till date the petitioners have not
challenged the said order in the manner known to law. When the said order
passed in favour of the respondents has attained finality, the petitioners are not
entitled to maintain separate applications under Section 28 of Specific Relief
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CRP No. 6750 of 2026
Act, 1963 seeking rescission of the contract. Petitions under Section 28 of
Specific Relief Act, 1963, seeking rescission of the contract is maintainable
only on the ground that respondents failed to deposit the balance sale
consideration within the time stipulated under the decree. In the facts of the
present case, the respondents already obtained order from the Court seeking
extension of time and the said applications are allowed. Therefore, the present
applications filed by the petitioners seeking rescission of agreement cannot be
entertained at all when the order extending time is not challenged by the
petitioners.
15.A faint attempt has been made by the learned counsel for the
petitioners by submitting that applications of the respondents seeking
condonation of delay were filed against dead person namely
P.S.K.Shanmugarajan, the first defendant in the suit. A perusal of the typed set
of papers would indicate the applications for condonation of delay have been
filed by the respondents against both the defendants and the first defendant has
been shown as a deceased. The second defendant is none other than the son of
the first defendant. Therefore, the estate of the deceased is very well represented
by his legal representative. Therefore, the said contention raised by the learned
counsel for the petitioners is also not appealable to this Court.
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CRP No. 6750 of 2026
16.In view of the above discussions, the C.R.P.Nos.6773 & 6750 of 2026
are also dismissed. Consequently, connected Civil Miscellaneous Petitions stand
closed. No costs.
03.11.2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
EP
To:-
1.I Additional Subordinate Judge, Erode
2.The Principal District Judge, Erode.
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2026:MHC:4449
CRP No. 6750 of 2026
S.SOUNTHAR J.
EP
CRP Nos.6750, 6760, 6767 & 6773 of 2026
CMP Nos.29072, 29122, 29142 & 29153 of 2026
03-11-2026
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