Extracted from the PDF above. The PDF is authoritative.
2026:HHC:31737 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO
No.
: 496 of 2023 Reserved on : 30
th June, 2026 Decided on
: 31
st July, 2026 Uploaded on : 31
st July, 2026 Pawan Kumar …Petitioner Versus Sansar Chand …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Ajay Sharma, Senior Advocate with Mr. Amit Dhumal & Ms. Parul Negi, Advocates. For the respondent : Mr. V.S. Rathore, Advocate. Virender Singh, Judge PetitionerPawan Kumar has filed the present petition, under Article 227 of the Constitution of India, against the order dated 30.06.2023, passed by the learned Senior Civil Judge, Dharamshala, District Kangra, H.P., (hereinafter referred to as the ‘executing Court’), in CMA No.444 of 2021, titled as Pawan Kumar versus Sansar Chand, tagged with Execution Petition No.11 of 2021. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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2. By way of order dated 30.06.2023, the application filed under Section 28 of Specific Relief Act, read with Sections 148 and 151 of the Code of Civil Procedure (hereinafter referred to as the CPC), has been dismissed.
3. The present petition has been filed by the petitioner, being Decree Holder in Civil Suit, titled as Pawan Kumar versus Sansar Chand, which was decreed, by the Court of learned Civil Judge (Senior Division), Kangra, vide
judgment and decree dated 6.12.2011.
4. For the sake of convenience, petitioner is hereinafter referred to as the DH, whereas, respondent is hereinafter referred to, as the JD.
5.
Brief facts leading to the filing of the present petition, before this Court, as borne out from the record, may be summed up, as under:
5.1. The DH has filed the execution petition, under
Order 21 Rules 10 and 22 of the CPC, for enforcement of decree dated 06.12.2011. The said decree was passed by the learned Civil Judge (Senior Division), Kangra at Dharamshala,
3 2026:HHC:31737 District Kangra, in favour of the DH, in Civil Suit No.43 of 2009, titled as Pawan Kumar versus Sansar Chand.
5.2. By way of the said judgment and decree, the following relief has been granted to the DH:
“ In view of the above, the suit of the plaintiff is decreed with costs whereby the defendant is
directed to execute the sale deed as per the agreement dated 5.12.2007 with respect to land measuring 00768 hectares i.e. 768/73717 share out of the land comprised in Khata Nos.5,6, Khatauni Nos.27 to 35, Khasra Kita 53 measuring 73717 hectares as per Jamabandi for the year 200607 situated at Mohal KajlotII, Mauza and Tehsil Dharamshala, District Kangra (HP), subject to payment of Rs.4,00,000/ by the plaintiff within two months from the date of decision. In case of failing to deposit the amount within two months, the suit shall be deemed to be dismissed. Decree sheet be prepared accordingly. File after due completion be consigned to the record room.”
5.3. As per the averments of the execution petition, in pursuance of the judgment and decree dated 6.12.2011, passed in favour of DH, he has deposited a sum of Rs.4,00,000/, on
01.03.2012. In order to demonstrate the said fact, the DH has relied upon the order dated 01.03.2012, passed by the learned Civil Judge (Senior Division), Kangra at Dharamshala. The said order is reproduced as under:
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“ Office report seen. It be registered. Applicant has been moved this application for permission to deposit amount of Rs.4,00,000/ as per the judgment and decree dated 06.12.2011 of this Court in case titled ‘Pawan Kumar versus Sansar Chand with C.S. No.43/2009. Perused. The applicant is allowed to deposit the amount. After due completion, be consigned to the record room.”
5.4. In pursuance of the said order, the amount of Rs.4,00,000/, has been deposited, by the DH, on the same day, i.e. 1.3.2012.
6. When the notice of the execution was issued to the JD, he has put appearance and filed reply to the execution petition, however, later on, he was proceeded against exparte.
7. The said execution petition was dismissed, by the executing Court on 12.10.2020, by holding that the DH has failed to deposit the amount, as per the judgment and decree, as such, his suit is deemed to have been dismissed.
8. The said order had been assailed by the JD, by filing the CMPMO No.06 of 2021, which was dismissed as withdrawn on 24.07.2021, by passing the following order:
“After arguing the matter for some time,
learned counsel for the petitioner seeks leave to
5 2026:HHC:31737 withdraw this petition, with a liberty to file fresh petition before the trial Court. At his request, this petition is dismissed as withdrawn with the aforesaid liberty. Pending miscellaneous application is disposed off.”
9. Thereafter, the DH has filed application, under Section 28 of the Specific Relief Act, read with Sections 148 and 151 CPC, for enlargement of time by 30 days, on 27.08.2021, before learned executing Court.
10. When put to notice, the application has been contested by the JD, by taking the preliminary objections that the application is not maintainable, in the present form, as the suit of the plaintiff has already been dismissed; applicant has not approached the Court with clean hands; the applicant is having no cause of action and locus standi to file the present application; the applicant is estopped from filing the application on account of his act and conduct; and the application is time barred.
10.1. On merits, the contents of the application, have been controverted, by stating that the Court had passed the ex parte decree against the JD on 06.12.2011, with a direction to
6 2026:HHC:31737 the DH to deposit the sale consideration of Rs.4,00,000/, within a period of two months, from the date of decision, failing which, the suit shall be deemed to be dismissed.
10.2. According to the JD, the said order has not been complied with, within the stipulated period and as per the
judgment and decree, his suit is now deemed to have been dismissed. 10.3. The application has further been contested on the ground that the applicant, by misleading the Court, has deposited the amount of Rs.4,00,000/, without seeking extension of time to deposit the said amount. The Court has already dismissed the execution petition, on merits. 10.4. Reasserting the stand that the execution petition has already been dismissed, as such, the prayer to dismiss the application has also been made. 11. Reply, so filed by JD, has been treated by the executing Court as objections and as such, opportunity to file reply to these objections has been given, in which, the DH, has controverted the preliminary objections, as well as, contents of the reply, by virtue of which, the application has been
7 2026:HHC:31737 contested. The said application has been dismissed by the learned executing Court, vide order dated 30.06.2023. 12. The said order has been challenged by the DH, before this Court, on the ground that the learned executing Court has failed to exercise the jurisdiction vested in it and has wrongly dismissed the application. 13.
On the basis of the above facts, the following prayer has been made, in this petition:
“ It is, therefore, respectfully prayed that in view of the submissions made hereinabove, the present petition, my very kindly be allowed and the order dated 30.06.2023 passed by learned Senior Civil Judge Dharamshala in Case No.CMA444/2021 tagged with Execution No.18 of 2021 whereby application filed by petitioner/ decree holder/plaintiff, under Section 28 of the Specific Relief Act read with Sections 148 and 151 of the CPC has been dismissed, with the prayer that present petition may kindly be accepted and impugned order abovestated may kindly be set aside and application as filed may kindly be allowed, as otherwise, application for execution of original decree as passed being within time but as an abandoned precaution, petition was filed for enlargement of time, with directions to the Court below to process in the matter afresh in accordance with law and to decide the execution petition afresh in accordance with law by directing the respondent herein to execute the sale deed or in the event of failure, sale deed may kindly be ordered to be got executed through officer of the Court and in the
8 2026:HHC:31737 alternative, enlargement of time as prayed for may kindly be granted, to secure the ends of law and justice.”
14. Per contra, Mr. V.S. Rathore, Advocate appearing for the JD has prayed that on account of his nondepositing the amount of sale consideration, within the stipulated period, the suit of the DH has been dismissed, in view of the stipulation of the judgment and decree. As such, according to him, the present petition is devoid of merits and the same may kindly be dismissed. 15. The execution petition filed by the DH was dismissed on 12.10.2020 and the same is held to be not maintainable, as according to the executing Court, payment of Rs.4,00,000/ was not made by the DH, within the stipulated time, as per the judgment and decree dated 6.12.2011. 16.
The said order has been assailed, by way of CMPMO No.6 of 2021, which has been dismissed as withdrawn, on 24.07.2021. 17. Thereafter, on the basis of the opportunity, so granted, the DH has moved the application, which has been
9 2026:HHC:31737 filed under Section 28 of the Specific Relief Act and Sections 148 and 151 of the CPC, with a prayer to enlarge the time by 30 days, over and above the period of two months. 18. Perusal of the record shows that the DH, after passing the judgment and decree, has moved an application, before the learned executing Court, seeking the permission to deposit the amount of Rs.4,00,000/, as per the directions, as contained in judgment and decree dated 6.12.2011. The application was moved on 28.02.2012, along with the copy of the judgment and decree, which was allowed vide order dated 01.03.2012, reproduced above, and the applicant was permitted to deposit amount of Rs.4,00,000/. 19. Admittedly, the JD has not contested the said suit and he was proceeded against exparte. 20. In such factual background, the important question, which arises for determination, before this Court, is about the fact whether the relief, which has been granted to the DH, by the learned trial Court, by way of judgment and decree dated 6.12.2011, has been taken away, merely on the
10 2026:HHC:31737 ground that he could not deposit the amount within the stipulated period. 21. The Court proceedings cannot be equated with the throwing of dice. The procedural laws are meant for the advancement of justice and once the Court, which has passed the decree, has permitted the DH to deposit the amount, as per the judgment and decree dated 6.12.2011, the same shall be deemed to be the compliance of the said directions. 22. It is not the case of the JD that the said permission has wrongly been granted by the learned executing Court or the same has been obtained by the DH, by concealment of material facts.
Moreover, the JD is estopped from opposing the prayer, as made, in the application, which, according to the considered opinion of this Court, is only extension of time to do an act, which has already been done. 23. By way of this application, extension of time has been sought. Once, the application has been moved by the DH, for depositing the decreetal amount, and the same has been allowed, by this Court, the time has already been extended,
11 2026:HHC:31737 since, the provisions of Section 148 of CPC enables the Court to enlarge the time. 24. Matter can be looked into from another angle. The learned trial Court, in the present case, has passed a decree for specific performance of contract. 25. Admittedly, the said judgment was passed ex parte and even after receiving the notice of the execution petition, the JD has not bothered to challenge the same before the Court, nor, he has made any efforts to take recourse to Section 28 of the Specific Relief Act. The provisions of Section 28 of the Specific Relief Act are reproduced 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.
12 2026:HHC:31737 (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 subsection (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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26. Admittedly, in the present case, no efforts have been made by the JD to get the agreement rescinded, upon which the decree for specific performance of contract has been passed by the learned trial Court. When, no steps have been taken for the rescission of contract, then, the decree holder cannot be nonsuited/disentitled to reap fruits of the judgment passed in his favour, merely on the ground that the learned trial Court has accepted the money, without application of the DH, under Section 28 of the Specific Relief Act or for extension of time to deposit the said amount. 27. The provisions of Section 28 of the Specific Relief Act have elaborately been discussed by the Hon’ble Supreme Court in Civil Appeal Nos.
563566 of 2025, titled as Balbir Singh & Another versus Baldev Singh (D) through his LRs & Others, 2025 INSC 81. Relevant paragraphs 26, 37, 39 to 44 of the judgment, are reproduced as under:
26. 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 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
14 2026:HHC:31737 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. [See : Chanda (dead) through Lrs. v. Rattni and Anr. reported in (2007) 14 SCC 26] xxx xxx xxx
37. In Bhupinder Kumar v. Angrej Singh, (2009) 8 SCC 766 : (2009) 3 SCC (Civ) 556, this Court held thus :
“21. It is clear that
Section 28
gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance. In other words, when the court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree. xxx xxx xxx
39. In the above case, the facts before this Court were that an agreement to sell had been executed nineteen years earlier on 1621980 and no explanation was forthcoming as to why the balance of the sale consideration was not deposited within the time granted by the court. No application for extension was made under Section 28 of the Act.
This Court observed that merely because a suit was filed within a period of three years prescribed by Article 54 of the Limitation Act, 1963, that did not
absolve
the
vendeeplaintiff
from demonstrating that he was ready and willing to perform the agreement and whether the non performance was on account of obstacles placed by
15 2026:HHC:31737 the vendor or otherwise. In that context, this Court held:
“17. … The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the court, as a matter of course, allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the trial court and 3 years of its confirmation by the appellate court? It is not the case of the respondent decreeholders that on account of any fault on the part of the vendor judgmentdebtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the respondent decreeholders as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the respondent decreeholders and no extension of time be granted to them to comply with the decree.”
40. The facts noted in the above extract from the
judgment indicate a situation which is factually distinct. In that case, the balance of the sale
consideration was sought to be deposited three years after the confirmation of the decree by the appellate court. In the present case the balance sale
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consideration came to be deposited immediately after the second appeals came to be allowed by the High Court in 2018 by seeking permission of the executing court.
41. In a given case the trial court while passing a conditional decree in a suit for specific performance may say so in so many words that if the plaintiff fails to deposit the balance sale
consideration within a particular period of time stipulated by the court while allowing the suit, the failure to make such deposit within the time prescribed would have the effect of dismissal of suit. In other words, there could be a decree which may say that if the plaintiff fails to deposit the balance sale consideration within the stipulated time period, the suit shall automatically stand dismissed. If such is the nature of the decree then will the court concerned become “functus officio” and would have no jurisdiction to grant extension of time fixed by the decree for the purpose of deposit? This is one issue that the Supreme Court one day in an appropriate case may have to consider and decide. We say so because there are conflicting views of different High Courts, including to some extent of this Court. In the present case, it is not necessary for us to look into and decide this issue because the decree is not of such a nature.
42. In the case of Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882, this Court has taken the view that Section 148 of the Code of Civil Procedure (C.P.C.) empowers the Court to deal with events that might arise subsequent to an
order, for the purpose of enlarging time for payment even though it had been peremptorily fixed, but in that connection the Court observed as follows:
“…Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory
17 2026:HHC:31737 litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed.”
43. The aforesaid gives an impression whilst laying down, in effect, that s. 148 must be liberally construed, the Court has excluded from its ambit conditional decrees. 44. It is well settled position of law that when time for payment of money is extended, it does not mean a modification of the decree. The trial court has power to extend the time, and the expression “such further period as the court may allow” would mean the court which had passed the decree, or, where the application under Section 28 of the Act of 1963, is filed. (self emphasis supplied)
28. Similar view has again been taken by the Hon’ble Supreme Court in Civil Appeal No.3245 of 2025 titled as Ram Lal versus Jarnail Singh (Now deceased) through its LRs & others, 2025 INSC 301. Relevant paragraphs 28, 44 to 47 of the judgment are reproduced as under :
28. In V.S. Palanichamy Chettiar Firm (supra) this Court while adverting to the decision of this Court in Ramankutty Guptan v. Avara reported in (1994) 2 SCC 642, held:
“15. … This Court observed that when the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, Section 28(1) itself gives power to the court to extend the time on such terms as the court may allow to pay
18 2026:HHC:31737 the purchase money or other sum which the court has ordered him to pay. The Court held, after noticing the conflict of decisions by the Bombay [Maruti Vishnu Kshirsagar v. Bapu Keshav Jadhav, 1969 SCC OnLine Bom 39 : AIR 1970 Bom 398] High Court and the Andhra Pradesh [Ibrahim Shariff v. Masthan Shariff, 1966 SCC OnLine AP 251 : (1967) 2 An WR 60] High Court, that when the court which passed the decree and the executing court is the same, application under Section 28 can be filed in the executing court.
However, where a decree is transferred for execution to a transferee executing court then certainly the transferee court is not the original court and the executing court is not the “same court” within the meaning of Section 28 of the Act. But when an application has been made in the court in which the original suit was filed and the execution is being proceeded with, then certainly an application under Section 28 is maintainable in the same court.” xxx xxx xxx
44. The decree for specific performance is in the nature of a preliminary decree. Both the parties have reciprocal rights and obligations flowing out of the decree. The decree may fix the time limit for performance and in some cases may also provide for the
consequence for nonperformance within the time limit or the decree may even be silent on this aspect. 45. The decree enforces specific performance of the contract. The contract between the parties is thus not extinguished by passing of a decree for specific performance and it subsists despite the decree. Section 28 (1)
of the Act, makes it clear that the Court does not become a functus officio after the grant of the decree for specific performance and it
19 2026:HHC:31737 retains its power and jurisdiction to deal with the decree till the sale deed is executed. 46. The Court has been conferred with the power to extend the time to pay the amount and while taking into consideration the delay that is sought to be condoned by the plaintiff, the Court does not adjudge the same like an application under Section 5 of the Limitation Act, where each day's delay must be explained. The Court is given the discretion to extend the time and the provision therefore seeks to provide complete relief to both the parties in terms of the decree for specific performance. 47.
The power and jurisdiction granted under Section 28 (1) of the Act, enables the Court to extend the period for payment of the purchase money if it has not been paid within the period allowed by the decree. It also enables the judgment debtor to seek for rescinding the contract for non compliance of the directions given in the decree and while considering this application, the Court is given the discretion to rescind the contract or in an appropriate case to even extend the time for paying the purchase money.” (self emphasis supplied)
29. If the facts and circumstances of the present case are seen in the light of the decisions of the Hon’ble Supreme Court, as referred to above, this Court has no hesitation to hold that the judgment and decree passed by the learned trial Court has not been got rescinded by the defendant, by taking recourse to Section 28 of the Specific Relief Act and even, the
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order impugned herein is totally silent about the provisions of Section 28 of the Specific Relief Act.
30. So far as the impediment, as per the executing Court, in view of the order dated 12.10.2020, is concerned, once, this Court has granted the opportunity to the DH to file the fresh petition, before the learned trial Court, then, there was no legal hesitation for the executing Court to proceed further with the application, under Section 28 of the Specific Relief Act. The said application has wrongly been dismissed, as opportunity has been granted by this Court, to the DH, to file fresh petition.
31. In view of the above, the order dated 30.06.2023, passed by the learned executing Court does not withstand the judicial scrutiny, by this Court. Consequently, the same is set aside. The execution petition/application is revived to the files of learned executing Court. The executing Court is requested to proceed further, in accordance with law, as the amount has been deposited by the DH with the permission of the Court and the JD has not taken recourse to get the agreement rescinded, under Section 28 of the Specific Relief Act.
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32. With these observations, the petition is disposed of. Pending miscellaneous application(s), if any, shall also stand disposed of. Record be sent back.
( Virender Singh ) July 31, 2026( ps ) Judge