Page No.# 1/8 GAHC010152972022 2026:GAU-AS:4955 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/90/2022 MUSSTT. NURIJA BEGUM MAZUMDER W/O AFJAL HUSSAIN MAZUMDER, R/O SUNDARI PART I, P.O.-SUNDARI B.O., PIN-788099, P.S.-KACHUDARAM, DIST-CACHAR, ASSAM VERSUS ON THE DEATH OF MD. ALIM UDDIN, HIS LEGAL HEIRS NAMELY S/O LATE SIKANDAR ALI, DIST-CACHAR, ASSAM 1.1:MUSSTT. RINA BEGUM MAZUMDER W/O LATE ALIM UDDIN R/O SUNDARI PART I P.O.-SUNDARI B.O. PIN-788116 P.S.-KACHUDARAM DIST-CACHAR ASSAM. 1.2:SAHADAT AHMED MAZUMDER S/O LATE ALIM UDDIN R/O SUNDARI PART I P.O.-SUNDARI B.O. PIN-788116 P.S.-KACHUDARAM DIST-CACHAR ASSAM. BEING MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN MUSSTT. RINA BEGUM MAZUMDER. 1.3:FARUK AHMED MAZUMDER Page No.# 2/8 S/O LATE ALIM UDDIN R/O SUNDARI PART I P.O.-SUNDARI B.O PIN-788116 P.S.-KACHUDARAM DIST-CACHAR ASSAM. BEING MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN MUSSTT. RINA BEGUM MAZUMDER Advocate for the Petitioner : MR. S D PURKAYASTHA, MS. S PHUKAN Advocate for the Respondent : , BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 01.04.2026 Heard Mr. S.D. Purkayastha, learned counsel for the petitioner. 2. In this petition under Section 115 of the Code of Civil Procedure, 1908, the petitioner has challenged the order dated 07.07.2022, passed by the learned Munsiff No.1, Cachar at Silchar (hereinafter referred to as the Trial Court) in Title Suit No.214/2017. It is to be noted here that vide impugned order dated 07.07.2022, learned Trial Court has dismissed the petition filed by the petitioner for condonation of the delay in depositing the balance sale consideration and for allowing her to deposit the same. 3. Mr. Purkayastha, learned counsel for the petitioner submits that the petitioner herein has instituted one title suit, being Title Suit No.214/2017 for specific performance of the contract dated 06.09.2016, for sale of the suit land. He submits that the learned Trial Court, after trial, had decreed the suit of the petitioner with the Page No.# 3/8 following direction:- (a) The plaintiff is entitled to specific performance of the contract dated 06.09.2016, for sale of the suit land subject to payment of remaining consideration of money of Rs.10,000/- to the defendant within the next 75 days from today and the defendant shall execute and register sale deed in respect of the suit land, in favour of the plaintiff, on receipt of the above mentioned balance amount. (b) In the event of failure of the defendant to execute and register the sale deed by receiving the amount of remaining consideration of Rs.10,000/- within the above period, the plaintiff shall be entitled to get the sale deed executed and registered and to delivery of khas possession of the decretal land through the process of the Court by depositing the said amount in the Court. (c) Cost of the suit. 4. Mr. Purkayastha further submits that though the judgment and decree was passed on 29.08.2018, the petitioner herein did not know details of the same and she also could not meet her engaged counsel to know about details of the judgment and to take necessary steps due to various domestic problems being a housewife and her husband also stayed outside for his occupation and in the meantime, the 75 days stipulated in the judgment and decree dated 29.08.2018 expired on 12.11.2018. And thereafter also, the petitioner herein could not contact with her engaged counsel and she thereafter conceived in the month of July, 2019 and due to various complications, her movement got restricted 4.1 Mr. Purkayastha also submits that ultimately on 29.05.2020, she gave birth of a female child and under the said circumstances, she could not contact with her engaged counsel for doing the needful and only in the month of March, 2021, she could met her counsel and as per his advise she applied for certified copy of the judgment and decree dated 29.08.2018, and the same was delivered to her on 24.03.2021 and thereafter, she could learn about the details of the judgment from her Page No.# 4/8 engaged counsel that she was required to deposit the balance consideration price of Rs.10,000/- only within 75 days and therefore, the petitioner has filed a petition supported by affidavit on 09.04.2021, before the learned Trial Court in the Title Suit No.214/2017 for allowing her to deposit the balance sale consideration after condoning the delay, but the said petition was dismissed vide impugned order dated 07.07.2022. 4.2 Mr. Purkayastha, referring to Section 28(1) of the Specific Relief Act, 1963, submits that there was no legal impediment to allow the prayer of the petitioner to deposit the balance sale consideration and further observed that there is no material to show that the petitioner was willing and ready to perform her part nor had she tendered or deposited the balance consideration as per the terms of the decree are unnecessarily made for these were not issue to be decided b the learned Trial Court and in view of the provision under Section 28(1) of the Specific Relief Act, the impugned order dated 07.07.2022 is illegal and arbitrary and under such circumstances, Mr. Purkayastha has contended to allow the application. Mr. Purkayastha, lastly submits that the petitioner herein also ready pay either interest or compensation upon the amount due. 4.3 To bolster his submission, Mr. Purkayastha has referred two decisions of Hon'ble Supreme Court, one in the case of Sardar Mohar Singh through Power of Attorney Holder, Manjit Singh v. Mangilal @ Mangtya, reported in (1997) 9 SCC 217, and the other in the case of Ram Lal v. Jarnail Singh (Now Deceased) through its LRs & Ors., reported in 2025 0 Supreme(SC) 433. 5. It is to be noted here that though service was effected upon the respondent, he failed to turn up and contest this proceeding. 6. Having heard the submission of Mr. Purkayastha, learned counsel for the petitioner, this Court has carefully gone through the petition and the documents placed on record and also gone through the relevant provision i.e. Section 28(1) of the Page No.# 5/8 Specific Relief Act and also the decisions referred by him. 7. It is to be noted here that Section 28(1) of the Specific Relief Act provides that 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. 8. It is also to be noted here that while interpreting the provision of Section 28(1) of the Specific Relief Act in the case of Sardar Mohar Singh (supra), Hon'ble Supreme Court in paragraph No.4 held as under:- “4. From the language of sub-section (1) of Section 28, it could be seen that the court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio. The very fact that Section 28 itself gives power to grant order of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial court retains its power and jurisdiction to deal with the decree of specific performance. It would also be clear that the court has power to enlarge the time in favour of the judgment-debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment- debtor and rejected. In other words, the court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. It is true that the respondent has not given satisfactory explanation of every day's delay. It is not, unlike Section 5 Page No.# 6/8 of the Limitation Act, an application for condonation of delay. It is one for extension of time. Under these circumstances, the executing court as well as the High Court had exercised discretion and extended the time to comply with the conditional decree. Accordingly, we do not find any valid and justifiable reason to interfere with the order passed by the High Court confirming the order of the executing court when in particular; the High Court has further enhanced a sum of Rs 16,000 to compensate the petitioner for loss of enjoyment of the money. The said amount is given to the respondent in a sum of Rs 16,000 rightly for the reason that parties contracted for non-performance of the contract. They quantified the damages at Rs 2000 for 8 years. The Court has given Rs 16,000 obviously in terms of the contract.” 9. Further, in the case of Ram Lal (supra), Hon'ble Supreme Court, referring to its earlier decision in Ramankutty Guptan v. Avara, reported in (1994) 2 SCC 642, held that in the case of Ramankutty Guptan (supra), this Court while holding that the application for extension of time for payment of balance amount of consideration can be filed in the Court of the first instance as well as in the appellate Court, and it has also observed that “it is to be seen that the procedure is hand-maid for justice and unless the procedure touches upon jurisdictional issue, it should be moulded to sub-serve substantial justice. Therefore, technicalities would not stand in the way to sub-serve substantive justice.” Thereafter, Hon'ble Supreme Court has observed that the respondent is entitled to simple interest upon the balance sale consideration at the rate of 9% per annum. It is also to be noted here that in the case of Sardar Mohar Singh (supra), Hon'ble Supreme Court has directed to pay compensation of a sum of Rs.16,000/- for loss of enjoyment of the money. 10. In the instant case, the judgment and decree was passed on 29.08.2018, and the time granted for depositing the remaining amount of sale consideration of Page No.# 7/8 Rs.10,000/- within 75 days and the said period elapsed on 12.11.2018, but the petitioner has filed the petition for extension of time on 09.04.2021. There is delay of 517 days. However, the learned Trial Court, considering the ground assigned found that still there is unexplained delay of a period of one year and the petitioner had failed to show any justified reason to demonstrate that she was ready and willing to deposit the balance consideration amount. 11. This finding of the learned trial court, to the considered opinion of this court, is not sustainable, while it is well settled in the case of Sardar Mohar Singh (supra), that the petition was filed under Section 28(1) of the Specific Relief Act cannot treated at par with an application under Section 5 of the Limitation Act for condonation of delay. It is also well settled that the court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. It is further well settled that in the case of Ramankutty Guptan (supra), the procedure is hand- maid for justice and unless the procedure touches upon jurisdictional issue, the court can mould the relief to sub-serve substantial justice and the technicalities would not stand in the way to sub-serve substantive justice. 12. Here in this case, from a perusal of the impugned order, it appears that the learned trial court had treated the petition under Section 28(1) of the Specific Relief Act, to extend time for compliance of the conditional decree for specific performance, at par with an application under Section 5 of the Limitation Act for condonation of delay, and rejected the same for unexplained delay of a period of one year. Further, the other reason assigned by the learned trial court that the petitioner has failed to show any justified reason to demonstrate that she was ready and willing to deposit the balance consideration amount also appears to be not applicable at post judgment stage, though the same was a vital issue while deciding the suit. A mere technicality, which does not touch upon jurisdictional issue, cannot stand in the way of sub-serve substantial justice, as held in the case of Ram Lal (supra), specially in paragraph No.54. Mr. Purkayastha has rightly pointed this out at the time of hearing and there Page No.# 8/8 appears to be substance in the same. 13. Under the above facts and circumstances, this court is unable to derive satisfaction about exercising the discretion so granted by Sub-section (1) of Section 28, by the learned trial court in a desired manner warranting interference of this court. 14. Thus, having carefully gone through the petition, which is annexed with the present petition at page No.20 and the affidavit and the annexure appended therewith, this Court is of the view that the petitioner herein has succeeded in establishing a case in her favour. 15. In the result, this court finds sufficient merit in this petition and accordingly the same stands allowed. The impugned order, dated 07.07.2022, is accordingly set aside and quashed. The petitioner herein is directed to deposit the amount of Rs.10,000/- with 9% interest from the date which it becomes due i.e. 12.11.2018, till such amount being deposited before the learned Trial Court. 16. In terms of above, this petition stands disposed of. Comparing Assistant Sd/- Robin Phukan JUDGE