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9 Mr A Tewari, learned Counsel appearing on behalf of the appellant urged the following submissions :

(i) The judgment and decree of the Trial Court dated 20 March 2012 has merged with the decree of the First Appellate Court 4 dated 17 January 2015. The doctrine of merger applies whether the judgment of a subordinate court is reversed, modified or upheld by a court superior to it (Chandi Prasad v Jagdish Prasad5);
(ii) The decree for specific performance is in the nature of a preliminary decree and the court passing it does not become functus officio (Sardar Mohar Singh v Mangilal6). Since the decree of the appellate court dated 17 January 2015 makes no mention of the transaction becoming time barred, limitation would commence from 17 January 2015;

19 Interpreting the provisions of Section 28 of the Specific Relief Act, a three judge Bench of this Court held in Sardar Mohar Singh (supra):

“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…” In Bhupinder Kumar v Angrej Singh10, this Court held thus:
22. 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 an 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 an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties.”