LexHABBAN SHAH versus SHERUDDIN
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[2026] 5 S.C.R. 404 : 2026 INSC 451 Habban Shah v. Sheruddin (Civil Appeal No. 7062 of 2026) 06 May 2026 [Pankaj Mithal* and S.V.N. Bhatti, JJ.] Issue for Consideration Issue arose whether the decree of specific performance passed by the court of first instance directing for the execution of sale deed on deposit of the balance sale consideration within three months would be inexecutable for the reason that the balance sale consideration was not deposited within the time stipulated. Headnotes† Specific Relief Act,1963 – s.28 – Code of Civil Procedure, 1908 – Ord. XX r.12A – Specific performance – Executability of conditional decree – Non-deposit of balance sale consideration within stipulated time – Defendant-appellant entered into agreement to sell the agricultural land to plaintiff- respondent for a sale consideration and received advance – Sale deed was to be executed by the stipulated date upon payment of the balance consideration – Non-execution of the sale deed within the time stipulated, the plaintiff-respondent filed suit for specific performance – Suit decreed by the court of first instance, directing the defendant-appellant to execute the sale in favour of plaintiff-respondent in terms of the agreement after receiving the balance sale consideration within three months and if the sale was not so executed, plaintiff-respondent would be entitled to get it executed through the process of the court – Decree challenged in first appeal which was dismissed – Second appeal also dismissed – Application for execution filed, and the defendant filed objections which were rejected – Defendant-appellant then filed Revision which was dismissed by the High Court – Correctness: * Author [2026] 5 S.C.R. 405 Habban Shah v. Sheruddin Held: Decree of specific performance rendered inexecutable on account of non-compliance of the condition to deposit the balance sale consideration within the time of three months stipulated therein and the contract as a whole stand rescinded in terms of s.28 – Decree passed in a suit for specific performance is in the nature of a preliminary decree – Court passing the same does not become functus officio as soon as the decree is passed but retains control over the decree even after the passing of the decree till the sale deed is executed or the decree is rendered inexecutable – s.28(1) provides for depositing or paying the balance sale consideration within the time allowed or to seek recession of the contract in the event of default even though the decree of specific performance has been granted, whereas s.28(4) bars a separate suit for any relief which can be claimed in the same suit by moving an application u/s.28 – Power of the Court u/s.28 is discretionary and can be exercised on equitable consideration – It is not mandatory to move an application u/s.28 and that the Court in the given circumstances is not powerless to treat the contract as having rescind it for non-compliance of the condition – On facts, the direction was specifically to the defendant-appellant to execute the sale deed within three months on receipt of the balance sale consideration, which by implication means that there is reciprocal obligation upon the plaintiff-respondent to deposit the amount within three months – Objections to the limitation and maintainability of the execution not tenable – Plaintiff-respondent having failed to deposit the balance sale consideration within the time permitted indicates that he was not actually ready and willing to perform his obligation under the decree which obligation, in essence, took the shape of a condition under the agreement – Plaintiff-respondent disentitled himself from the benefit of the decree of specific performance – s.28 provides that the Court has to pass an order as the justice of the case may require – Parties approaching the Court must have the feeling that justice has been done to either of them in the facts and circumstances of the case particularly when the decree relates to specific performance of a contract based upon equity, equality and fairness – Thus, incumbent upon the Court to pass equitable order accordingly, balancing the equities between the parties – Impugned judgment passed by the High Court in the Revision and that of the Executing Court dismissing the objections, set aside. [Paras 18, 22-24, 46-53] 406 [2026] 5 S.C.R. Supreme Court Reports Case Law Cited Balbir Singh and Another v. Baldev
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