Neutral Citation No. - 2025:AHC-LKO:16070 Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 1319 of 2025 Petitioner :- Maya Devi And 3 Others Respondent :- Nijamuddeen And Another Counsel for Petitioner :- Anil Kumar Gupta,Smt. Ruchi Gupta Hon'ble Pankaj Bhatia,J. 1. Heard learned Counsel for the petitioners. 2.The present petition has been filed challenging the order dated 11.01.2024 passed in the Execution Case no.4 of 1992 as well as the order dated 10.02.2025 whereby, the revision preferred against the said order was rejected. 3. The facts that emerge are that a suit was decreed against the petitioners on 20.04.2019. The counsel for the petitioners states that no appeal was preferred against the said order and the said order attained finality. The decree holder filed an application for execution on 12.09.2019 and along with the said, a tender for deposit was also filed, however, the said application for acceptance of the amount of the tender could not be disposed off in view of the fact that two appeals were pending. Subsequently, the said tender was accepted. The petitioners filed an application under Section 28 of the Specific Relief Act which has been disposed off by means of the impugned order and simultaneously permission to tender the amount contained in the judgment is allowed. 4. The Counsel for the petitioners argues that in view of the stipulations contained in Section 28 of the Specific Relief Act, the decree could not have been executed. 5. It is essential to noticed Section 28 of the Specific Relief Act, which is as under: "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 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ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case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 (2) Where a contract is rescinded under sub-section (1), the court-- (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore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 the lessee as earnest money or deposit in connection with the contract. (3) If the purchase 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." 6. The said section would have no applicability to the facts of the present case, inasmuch as, the judgment itself directed the defendant to accept the amount of Rs.39,600/- and execute a sale deed within a period of two months, failing which, permission for execution was provided. No directions were issued to the plaintiff to deposit the amount within two months as has been sought to be argued, as such, prima facie, Section 28 would not come to the rescue of the petitioner. 7. Reliance has been placed by the Counsel for the petitioners on the judgment of the Hon'ble Supreme Court in the case of Prem Jeevan vs K.S. Venkata Raman and another: AIR 2017 SC 623, wherein, the Hon'ble Supreme Court had held that where the time is granted or the said time is extended and no money is paid, the decree cannot be executed. 8. The abovesaid judgment would have no applicability to the facts of the present case for two reasons, firstly that no time was granted by the executing court for depositing the money and secondly, along with the execution application, a tender was also filed for acceptance, thus, for both the reasons, there is no delay at the instance of decree holder, as such, the orders impugned have rightly passed rejecting the application. The same would not warrant any interference. 9. The writ petition is dismissed. Order Date :- 20.3.2025 akverma Digitally signed by :- ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench Digitally signed by :- ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench