APHC010601342024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3331] THURSDAY, THE SEVENTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION NO: 305/2025 Between: Pedada Krishnarao ...PETITIONER AND Modalavalasa Paparao ...RESPONDENT Counsel for the Petitioner: 1. P DURGA PRASAD Counsel for the Respondent: 1. M. SAPTHAGIRI The Court made the following: ORDER The defendant/judgment debtor filed the above revision against the order dated 06.12.2024 passed in I.A.No.720 of 2024 in O.S.No.37 of 2008 on the file of Civil Judge (Junior Division), Ponduru, Srikakulam District. 2. The respondent/decree holder filed the suit O.S.No.37 of 2008 seeking specific performance of the agreement of sale dated 10.11.2003, against the petitioner/judgment debtor. The said suit was decreed on 04.08.2008. Thereafter, the decree holder filed E.P.No.12 of 2019 under Order XXI Rule 34 of the Code of Civil Procedure, 1908 (for short ‘C.P.C.’) seeking execution of sale in favour of the respondent/decree holder. In the said petition, it was stated that the respondent/decree holder deposited the balance of the sale consideration in the Court along with the necessary stamp and registration charges. 3. Pending the said E.P., the petitioner/judgment debtor filed I.A.No.720 of 2024 under Section 28 of the Specific Relief Act (for short ‘the Relief Act’), seeking to rescind the contract. In the affidavit filed in support of the said petition, it was contended that an ex parte decree was passed in the suit on 04.08.2008, directing the respondent/plaintiff to deposit the amount within two months. The plaintiff deposited the balance sale consideration on 19.08.2011, after two years of the decree, and thus, the respondent/plaintiff violated the terms of the decree. The respondent/plaintiff, after depositing the amount, filed the aforementioned execution petition. Therefore, the petitioner/defendant requested to rescind the agreement. 4. A counter affidavit was filed on behalf of the respondent/decree holder. It was contended, inter alia, that a suit for specific performance of the agreement of sale dated 10.11.2003, was filed. After receipt of the summons, the defendant did not enter an appearance and hence, he was set ex parte. The trial Court decreed the suit on 04.08.2008. Subsequently, the respondent/plaintiff filed I.A.No.418 of 2009 in O.S.No.37 of 2008 to condone the delay of 198 days in depositing the balance of sale consideration and stamp and registration expenses. The said petition was allowed on 24.04.2009, and thereafter, the petitioner deposited the amount. After the establishment of the new Court at Ponduru, the respondent/plaintiff filed the execution petition. Eventually, prayed to dismiss the petition. 5. The trial Court, by order dated 06.12.2024, dismissed I.A.No.720 of 2024 in O.S.No.37 of 2008, against which the above revision is filed. 6. Heard Sri A.S.K.S. Bhargav, learned counsel for the petitioner/defendant and Sri Sapthagiri, learned counsel for the respondent/plaintiff. 7. Learned counsel for the petitioner would contend that the trial Court failed to consider the scope of Sec 28 of the Specific Relief Act. He would also submit that two years after the decree was passed, the respondent/plaintiff filed I.A.No.418 of 2009 to condone the delay of 198 days to deposit the balance sale consideration, stamp duty, etc., and the same was allowed on 24.04.2009, without issuing notice to the petitioner/judgment debtor. Thereafter, the decree holder deposited the amount on 19.08.2011 and thus, failed to honour the decree as well as the time granted in I.A. 8. Learned counsel for the respondent/plaintiff, on the other hand, supported the order of the trial Court. 9. Now, the point for consideration is: Does the order dated 06.12.2024 in I.A.No.720 of 2024 in O.S.No.37 of 2008 on the file of learned Civil Judge (Junior Division), Ponduru, Srikakulam, suffer from illegality or perversity warranting interference by this Court under Section 115 of the Code of Civil Procedure? Page 4 of 8 10. From the facts narrated supra, it is an undisputed fact that the respondent/decree holder filed suit O.S.No.37 of 2008 against the petitioner/judgment debtor, on the file of Junior Civil Judge, Rajam, seeking specific performance of the agreement of sale and the said suit was decreed on 04.08.2008. 11. The last two lines of judgment read as follows: “the plaintiff is directed to deposit the balance of sale consideration, registration charges etc., within two months” 12. The operative portion of the decree reads as follows: “… i) that the suit be and is hereby decreed with costs directing the defendant to execute the registered sale deed for the schedule property in favour of the plaintiff within two months from the date of the Judgment; ii) that if the defendant failed to do so the plaintiff is at liberty to execute the registered sale deed through Court; iii) that the plaintiff be and is hereby directed to deposit the balance of sale consideration, registration charges etc., within two months from the date of the judgment; iv) that the defendant do pay to the plaintiff the sum of Rs.1294.00 towards costs of the suit” 13. Thereafter, the respondent/decree holder filed I.A.No.418 of 2009 under Section 151 of CPC, to condone the delay of 198 days and permit him to deposit the balance sale consideration and stamp and registration expenses. No notice was issued to the respondent since the respondent was set ex-parte in the suit. The said petition was allowed on 24.04.2009. The order reads thus: “In the result, the petition is allowed. Permitted to deposit the stamp and registration, necessary charges.” 14. The decree holder deposited the balance sale consideration of Rs.2,500/- on 19.08.2011 and thereafter filed the execution petition. Thus, even before filing the E.P., the amount was deposited by the decree holder. However, one should not overlook the fact that the order was made on 24-4-2009, and thereafter the amount was deposited, as per averment in the counter by the decree holder, on 19-8-2011. 15. Whether the deposit on 19.08.2011 obviates the judgment debtor from making the I.A. under Section 28 of the Specific Relief Act. 16. Before proceeding further, it is apt to extract Section 28 of the Specific Relief Act, which reads thus: 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.” 17. Section 28(1) of the Act makes it clear that if the vendor fails to deposit the amount within the time or further time, the vendor may apply to rescind the contract. The judgment debtor can seek rescission of the contract. Thus, the answer to the issue is affirmative. Page 7 of 8 18. As narrated supra, despite the extension, the balance amount, it seems, has not been deposited within the time stipulated. In fact, the order in I.A.No.418 of 2009 does not explicitly indicate extending the time to deposit the balance amount, except to deposit stamps and registration charges. The finding by the Court below in this regard is not clear. It is also an undisputed fact that later, a new court was constituted at Pondur and thereafter, E.P. was filed. 19. No doubt in the E.P., the son of the petitioner/judgment debtor filed E.A.No.7 of 2021, and an enquiry is being caused in the said petition. Pending the said petition, the petitioner/judgment debtor filed I.A.No.720 of 2024 under Section 28 of the Relief Act, to rescind the contract. 20. Whenever an application is filed under Section 28 of the Act, since the decree for specific performance is a preliminary, if the Court records its findings regarding time granted, extending time if any, date of deposit etc., it will ease the revisional court or the appellate court to dispose of the issue judiciously. The pivotal issue is the time fixed to deposit, extension, and reasons to extend the time and compliance with the order. 21. However, in the case at hand, no such findings were recorded. Indeed, the Court was carried away by the notion that the decree holder deposited the amount even before filing E.P. In the considered opinion of this court, the Court below misdirected itself, without understanding the scope of Sec 28 of the Specific Relief Act. Thus, the Court below failed to exercise the jurisdiction vested in it, resulting in a miscarriage of justice to the judgment debtor, warranting interference by this Court while exercising revisional jurisdiction. Page 8 of 8 22. Given the discussion supra, this Civil Revision Petition is allowed. The order under revision is set aside. The matter is remitted to the Court below. I.A.No. 720 of 2024 in O.S.No.37 of 2008 is restored. The Court below shall verify the record, and if necessary, call for the original record from the Court that passed the decree and order in I.A.No.418 of 2009. The Court below shall, if necessary, provide an opportunity to the parties and pass appropriate orders. The Court below shall expedite the disposal of the I.A., keeping in view the year of the suit and the date of decree, subject to the other matters on its board. Observations, if any, made above will not influence the Court below in adjudicating the issue on the merits. The observations were made only to dispose of the revision. No order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed. ___________________________ JUSTICE SUBBA REDDY SATTI Date : 17.04.2025 IKN