ISHWAR (SINCE DECEASED) THR. LRS & ORS. versus BHIM SINGH & ANR.

Citation: [2024] 9 S.C.R. 1 · Decided: 03-09-2024 · Supreme Court of India · Bench: J.B. PARDIWALA · Disposal: Dismissed

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Judgment (excerpt)

[2024] 9 S.C.R. 1 : 2024 INSC 651
Ishwar (Since Deceased) Thr. Lrs & Ors. 
v. 
Bhim Singh & Anr.
Civil Appeal No. 10193 of 2024 
03 September 2024
[J.B. Pardiwala and Manoj Misra,* JJ.]
Issue for Consideration
Issue arose as to whether the execution court had jurisdiction to 
deal with the application for rescission of contract and extension 
of time to deposit the balance sale consideration; and if execution 
court had the jurisdiction, whether those applications ought to 
have been decided as one in the suit on original side, if yes, 
then, whether, in the facts of the case, on that ground alone, the 
impugned order warrants interference in exercise of jurisdiction 
Art 136 of the Constitution.
Headnotes†
Specific Relief Act, 1963 – s. 28 – Rescission in certain 
circumstances of contracts for the sale or lease of immovable 
property, the specific performance of which has been  
decreed – Application for rescission of contract and extension 
of time to deposit the balance sale consideration – Jurisdiction 
of the execution court:
Held: Bare reading of s. 28 gives an impression that the power 
to extend time to deposit, or to rescind the contract on failure of 
deposit vests in the Court which passed the decree – Expression 
“may apply in the same suit in which the decree is made” as used 
in u/s. 28 must be accorded an expansive meaning so as to include 
the court of first instance even though the decree under execution 
is passed by the appellate court, because the decree is in the 
same suit – Thus, an application u/s. 28, either for rescission of 
contract or for extension of time, can be entertained and decided 
by the execution court, provided it is the court which passed 
the decree in terms of s. 37 CPC – On facts, the Court of first 
instance, (where the civil suit was instituted) and the execution  
application was filed before the Court of Additional Civil Judge 
* Author
2
[2024] 9 S.C.R.
Digital Supreme Court Reports
(Senior Division) – Application u/s 28 was disposed of by the Court 
of Civil Judge (Senior Division) – Thus, by virtue of s. 37 CPC, 
the execution court being the Court of first instance with reference 
to the suit in which the decree was passed had jurisdiction to 
deal with the application u/s. 28 of the Act – Thus, the objection 
as regards the jurisdiction of the execution court to deal with the 
application for extension of time/rescission of the court u/s. 28(1) 
is rejected. [Paras 15, 18, 19]
Specific Relief Act, 1963 – s. 28 – Rescission in certain 
circumstances of contracts for the sale or lease of immovable 
property, the specific performance of which has been  
decreed – Execution court to decide the application u/s. 28 
as an application on the original side (as an application in 
the suit) or on the execution side (as an application in the 
execution proceedings):
Held: Application seeking rescission of contract, or extension of 
time, u/s. 28 (1), must be decided as an application in the original 
suit wherein the decree was passed even though the suit has been 
disposed of – Thus, even if the execution court is the Court of 
first instance with reference to the suit wherein the decree under 
execution was passed, it must transfer the application filed u/s. 28 
to the file of the suit before dealing with it. [Para 22]
Constitution of India – Art. 136 – Jurisdiction under – Exercise 
of – Suit for specific performance of agreement by respondents 
against appellants, partly decreed, directing the appellants to 
refund the earnest money – Appeal thereagainst, allowed by 
the appellate court, directing the appellants to execute the 
sale deed in favour of the respondent on payment of balance 
sale consideration within the stipulated period, failing which 
the respondents could get the sale deed executed through the 
court – Application for execution of the decree and deposit 
of balance sale price by the respondents – During pendency, 
appellants filed second appeal which was dismissed – 
Respondent’s then filed application before the execution court 
seeking permission to deposit the balance consideration in 
the court, whereas the appellant filed application u/s. 28 to 
rescind the contract – However, the execution court rejected 
the appellant’s application and permitted the respondents 
to deposit the balance consideration – Aggrieved appellant, 
then filed revision which was dismissed – Interference with:
[2024] 9 S.C.R. 
3
Ishwar (Since Deceased) Thr. Lrs & Ors. v. Bhi

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