Sanjay Shivashankar Chitkote vs Bhanudas Dadarao Bokade (D) – S 28 Specific Relief Act

Specific Relief Act, 1963;  Section 28- The application seeking rescission of the decree of specific performance or an application seeking further period for the payment of purchase money or other sum which the court has ordered the judgment debtor to pay in a decree in a suit for specific performance should be filed “in the same suit”, it means in the suit itself i.e. on the original side and not in the execution proceedings – The Executing Court cannot extend the time granted by the Court which passed the decree but an application, though made on the execution side may be transferred to the original side. However, the Executing Court can direct depositing balance price where the trial and appeal courts have not given direction. (Para 8)

Specific Relief Act, 1963; Section 28- The power under Section 28 being discretionary, the order of rescission cannot be passed on flimsy grounds but in a clear case of default so as to nullify the decree of specific performance. The Court has also 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. (Para 8)

Specific Relief Act, 1963; Section 28 –When the Court passes the decree for specific performance, the contract between the parties is not extinguished. It is in the nature of a preliminary decree and the suit is pending even after the decree. Thus, the court on passing a decree of specific performance does not become functus officio – It has the power to order recission of the agreement as well as the power to extend the time to pay the amount or to perform the conditions of decree for specific performance despite the application for recission of the agreement or decree. In deciding such an application under Section 28(1) of the Act, the Court has also to see all the attending circumstances including the conduct of the parties.(Para 8)

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