RAMANKUTTY GUPTAN versus AVARA

Citation: [1994] 1 S.C.R. 542 · Decided: 03-02-1994 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA

Cited by 7 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
RAMANKUTTY GUPTAN 
v. 
A VARA 
FEBRUARY 3, 1994 
B 
(K. RAMASWAMY AND B.L. HANSARIA, JJ.] 
Specific Relief Act, 1963: Section 28-Suit filed for recovery of balance 
of consideration in a contract for sale-Decree passed by the Appellate 
C Court-Application filed to rescind the contract of sale-Whether main-
tainable on the execution. 
Words & Phrases: "Same Court"-Meaning of in the context of S. 28( 1) 
of the Specific Relief Act, 1963. 
D 
Under a contract of sale the respondent was put in possession and 
on failure of the vendor to execute the sale deed, the respondent filed a 
suit for specific performance. The trial court dismissed the suit. On appeal 
the appellate court granted the decree for specific performance. It also 
granted one month's time to the respondent to deposit the balance con-
sidercttion. The appellant preferred a second appeal to the High Court. 
E 
Respondent deposited the amount after the time fixed by the appellate 
court but before the second appeal was dismissed. 
While the decree was in execution the appellant filed a petition under 
Section 28 of the Specific Relief Act, 1963 to rescind the contract of sale 
p 
on the plea that l.he respondent had committed default in depositing the 
balance consideration of Rs.4,351 within the time allowed by the appellate 
court. The executing Court dismissed the application. The Revision peti- ' 
tion preferred to the High Court was also ·dismissed. The High Court held 
that the application was not maintainable on the execution side. Hence this 
G appeal. 
The Respondent contended that the meaning of the word "same suit" 
~--.... 
in s. 28(1) of the Act should not be construed to be the original court in 
which the decree was made and so the application would lie for extension 
of time, or for rescinding the contract, only in the appellate court and not 
H in the trial court, that too on execution side. 
542 
( 
-
RAMANKUITY v. AV ARA 
543 
Dismissing the appeal, this Court 
HELD: 1.1. It is clear that the decree of the appellate court would be 
construed to be the decree passed by the Court of first instance. It is settled 
law that an appeal is a continuation of the suit. Therefore, when a decree 
for specific performance has been dismissed by the trial court, but decreed 
by the appellate court, it should be construed to be in the same suit. When 
A 
B 
the decn:e specifies the time for performance of the conditions of the 
decree, on its failure to deposit the money, section 28(1) of the Specific 
Relief Act, 1963 itself gives power to the court to extend the time on such 
terms as the court may allow, to pay the purchase money or other sum 
which the court has ordered him to pay. An application for extension of C 
time for payment of balance consideration may be filed even in the court 
of first instance or in the appellate court in the same suit as the decree of 
the trial court stands merged with that of the appellate court which decree 
is under execution. It is to be seen that the procedure is the hand-maid for 
justice; and unless the procedure touches upon jurisdictional issue, it D 
should be moulded to subservc substantial justice. Therefore technicalities 
would not stand in the way to subserve substantive justice. Where the 
decree is transferred for execution to a transferee executing court, then 
certai~ly the transferee court is not the original court and execution Court 
is not the "same court" within the meaning of s. 28 of the Act. But when an 
application has been made in the court in which the original suit was filed E 
and the execution is being proceeded with, then certainly an application 
under section 28 is maintainable in the same court. [546-G-H, 547-A-E] 
1.2. It is equally settled law that after passing the decree for specific 
performance, the court does not cease to have any jurisdiction. The court F 
retains control over the decree even after the decree has been passed. It 
was open to the court to exercise the power under s. 28(1) of the Act either 
for extension of time or for rescinding the contract as claimed for. Since 
the execution application has been filed in the smae court in which the 
original suit was filed, namely, the court of first instance, instead of 
treating the application on the execution side, it could have as well been G 
numbered as an interlocutory application on the original side and dis-
posed it of according to law. [547-F-G] 
K Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar, [198

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