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The 2nd defendant/Revision Petitioner filed counter affidavit in I.A.No.58 of 2011 opposing the prayer for extension of time for deposit into Court on all fours.

The case of the 2nd defendant is that the decree for specific performance is a conditional decree. The balance sale consideration, if is not deposited within the time granted by the Court, the plaintiff loses all the rights under the decree and the decree cannot be enforced. The plaintiff is mandated by the decree in O.S.No.6 of 2000 to deposit the balance sale consideration on or before 30.11.2005 and admittedly, the balance sale consideration is not deposited within the time granted by the trial Court. Thus, the decree in O.S.No.6 of 2000 is unenforceable. The 2nd defendant denies the allegation viz ignorance of dismissal of C.R.P.No.3987 of 2005 pleaded by the 1st plaintiff. The stay granted in C.R.P.No.3987 of 2005, if is considered as the reason for not depositing the amount on or before 30.11.2005, it is contended that the balance sale consideration should have been deposited within reasonable time after the disposal of C.R.P.No.3987 of 2005 on 29.03.2006. It is further contended that the plaintiff was alive up to 31.08.2009 i.e., beyond three years from the date of decree and judgment in O.S.No.6 of 2000. The plaintiff did not choose to deposit the balance sale consideration for the reasons known to plaintiff. Therefore, the question that the 2nd plaintiff expressing readiness and willingness to deposit the balance sale consideration is besides the point. Therefore, it is contended that there are no grounds for granting enlargement of time for depositing the balance sale consideration. The application, hence, is not tenable in law and no grounds are made out for accepting the prayer for extension of time granted in the decree in O.S.No.6 of 2000. The 2nd defendant prayed for dismissing the application.

empowers the Court to deal with the events those might arise subsequent to an order for the purpose of enlarging the time for payment even though it had been peremptorily fixed, but also observed that such procedural orders, though peremptory (conditional decrees apparent) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estope the Court from taking note of events and the circumstances which happen within the time fixed. Considering the said ruling of the Apex Court, the learned single Judge held that "it is, therefore, quite clear that whilst laying down, in effect, that Section 148 must be liberally constructed, the Supreme Court has excluded from its ambit conditional decrees like the one in the present case." It is to be noted that in the case before the learned single Judge, the time specified for payment of amount in the decree for specific performance had already expired and a request for extension of the said time was rejected by the lower appellate Court. In view of provisions of law contained in Order 20, Rule 12-A of CPC, and the decision of the Apex Court in K. Kalpana Sarawathi (supra) and Ramankutty Guptan's (supra), which were delivered subsequent to the decision in Mahant Ram Das's case, it is apparent that the law as regards the nature of decrees in suit for specific performance is well settled and it is to be held that the settled law now is that mere specification of time to pay the amount and observation therein that in case of failure to pay amount within the specified time, the suit would stand dismissed, that would not render such a decree either to be conditional or final decree and, therefore, the decision of the learned single Judge in Bhujangrao Ganpati's case is no more a good law and is not binding upon this Court in view of the above referred Supreme Court decisions which have been delivered subsequent to the said decision in Bhujangrao Ganpati's case (supra), and the same being on the point in issue.

"when the court passes the decree for specific performance, the contract between the parties is not extinguished. The court does not lose its jurisdiction after the grant of the decree for specific performance nor does it become functus officio. The decree for specific performance is in the nature of a preliminary decree, and the suit is deemed to be pending even after the grant of such decree. Hence, the Court retains control over the entire matter even after the decree. Section 28 gives power to grant order of rescission of the agreement which itself indicates that till the sale deed is executed, the Trial Court retains its power and jurisdiction to deal with the decree of specific performance. Therefore, the court has the power to enlarge the time in favour of the decree-holder to pay the amount or to perform the conditions mentioned in the decree for specific performance.

It is clear that Section 28 gives power to the court either to extend the time for compliance of the decree or grant order of rescission of the agreement. These powers are available to the Trial Court which passes 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 clear that the decree for specific performance is in the nature of preliminary decree and the suit is deemed to be pending even after the decree. Sub-section 1 of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the Court to grant order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding application under Section 28(1) of the Act, the Court has to see all attending circumstances including the conduct of the parties.