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The Court then held that application filed by the appellant for rescission of the contract and the decree was _not main- tainable. The reasoning of the Court was two-fold. no Court said that the appellant had no accrued, right to apply for rescission under section 35 of the Specific Relief Act, 1877, which would survive the repeal of that Act by the Specific Relief Act, 1963, and so, no application for rescission would lie under section 35 of the old Act read with section 6 of the General Clauses Act, 1897. It then,held that since section 28 of the Specific Relief Act, 1963, only provided for rescission of a decree for specific performance of a contract for the sale or lease of immovable property, the application was incompetent under the section and allowed the appeal and cross-objection in part. We do not think that the appellant had an accrued right for rescission of the contract or the decree for specific performance under section 35 of the Specific Relief Act, 1877, when the Act was repealed by the Specific Relief Act, 1963, on March 1, 1964. It may be recalled that the decree in suit No. 600 of 1961 was passed on February 25, 1964 and that the application for rescission of the decree was filed on March 21, 1967. Section 35 of the Specific Relief Act, 1877, so far as it is material for the purpose of this case, provided that where a decree for specific performance of a contract of sale or of a contract to take a lease has been made and the purchaser or lessee makes default in payment of the purchase money, which the Court has ordered him to pay, the decree may be rescinded as regards the party in default either by a suit or by an application. The right to rescind the decree under the section can arise only if the purchaser makes default in paying the purchase money ordered to be paid under the decree. Before the lapse of a reasonable time from the date of the decree, the appellant could have no right to have the decree rescinded on the ground of default of the purchaser. To put it in other words, the right of the,appellant to have the decree rescinded was dependent upon the default of the purchaser in paying the purchase money. Such a default had not occurred when the Specific Relief Act, 1877, was repealed, as a reasonable time for the performance of the obligation under the decree had not elapsed from the date of the decree. The more important reason why there was no default in this case was that the execution of the decree in suit No. 600 of 1961 was stayed by orders of the trial and appellate Court till August 26, 1964. We, therefore, agree with the finding of the Division Bench that the appellant had no accrued right on the date of the repeal to file an application under section 35 of. the Specific Relief Act 1877, which was saved under section 6 of the General Clauses Act, 1891. The mere right to take advantage of the provisions of an Act is not accru ed right [see Abbott v. The Minister for plans(1)]. (1) [1895] A.C. 425.

(ii) He may apply to the Court (by motion in the action) for an order rescinding the contract. On an application of kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered; otherwise, the order will be for rescission default of completion within a limited time......"

(1) A.I.R. 1959 Patna 460.

(2) Fry on Specific Performance, 6th ed. p.546.

In Halsbury's laws of England(1) the law is stated as under

The matter can be looked at from another angle. Mundhra by exercising the option to purchase the 51 per cent shares, became entitled to obtain a conveyance of the shares from the apellant on payment of the purchase money. 'Mere was no (1) Halsbury's Laws of England 3rd Ed,, Vol, 36. 351-52.

vision in the agreement at what time or within what period after the exercise of the option the appellant should convey the shares against the payment of the purchase money. But it was open to either party to make time essential by intimating the other party after a reasonable period about it after expressing its or his readiness and willingness to perform its or his obligation under the contract. That liberty was not taken away because a decree has been passed for specific performance of the contract without fixing the time for the performance. The appellant could, therefore, have called upon Mundhra to pay the purchase money and take delivery of the shares within reasonable time. The fact that the decree did not fix a time for completing the contract did not prevent either party from demanding performance from other party within a reasonable time and thus make time essential, as the parties had that liberty before the decree was passed and the decree did not abrog ate that liberty in any way, and if the party 'from whom performance was demanded evinced by his conduct that he was unwilling to perform his part, then it was open to the party claiming performance to rescind the contract and obtain an ,order from the Court adjudging rescission of the contract and the decree thereon. We do not think, in case the Court comes to the conclusion that the party moved against has by conduct evinced an intention not to perform his part of the contract, the fact that no time has been fixed in the decree would preclude it from adjudging the contract as rescinded. The observation of Fry already quoted does not mean that unless a time is specified in the decree there can be no default. It only means that if the conduct of the party moved against is equivocal, an order for rescission will be made only in default of completion within a specified time. Nor can the observation quoted above from Halsbury's Laws of England bear any other construction. We have already indicated that section 28 of the Specific Relief Act. 1963, deals only with rescission of a decree for specific performance "of an agreement to sell or lease immovable property and so the terms of the section are hardly relevant in deciding the question whether there can be default without fixing the time for performance in a decree for specific performance of an agreement to sell movables. We think it unnecessary to decide the question whether, under arty circumstances, there can be default of performance where a decree for specific performance of an agreement to sell or lease immovable property does not specify the time of performance for the purpose of an application for rescission of the decree. It is no doubt true that after the, decree in suit No. 600 of 1 96 1, a stay was'obtained by the appellant preventing the execution of the decree: an appeal was also prefer-red against that decree and a stay obtained for the same purpose, from the appellate court and that the order continued in force till the, disposal of the appeal Oil August 26, 1965. Till then, there can be no question of Mundhra being in default because he was not required by the orders of Court to perform his part of the obligation under the decree. But the: question is, was he in default after August 26, 1965, in performing his part of the obligation under the decree ? Counsel for Mundhra relied upon the observations in the order of Ray J. passed on the application on the Master's summons as well as in the order passed in the appeal (No. 286 of 1965) therefrom on August 18, 1966, to show that there was no offer by the appellant to deliver the shares. and, therefore, Mundhra was not in default in paying the purchase money. It will be recalled that on July 13, 1966, Son J. passed the order in suit No. 2005 of 1965 directing Mundhra to pay the purchase price and take delivery of the shares from the receiver. The learned judge further directed that the lien, if any, of Turner Morrison would shift to the purchase money to be paid to the receiver. This order, though passed in suit No. 2005 of 1965 in which Mundhra was not a party, was communicated to him by the letter of the appellant dated January It, 1967. Even before that, two letters had been sent on July 28 and July 29, 1966, by the appellant's solicitors to Mundhra asking him to be ready with the sum to take delivery of the shares before the Court hearing appeal No. 286 of 1965. This was refused by Mundhra by his letter dated' August 2, 1966. In the reply of Mundhra dated January 25, 1967, to the letter dated January 11, 1967, from the appellant, he raised the objection that the appellant was not in a position to give delivery of the shares and that the order dated July 13, 1966, was not binding on him, as he was not a party to the suit in which the order was passed. As the receiver had the shares in his possession, there was no point in the objection raised by Mundhra that the appellant was not in a position to deliver the shares. In other words, the receiver had the shares in his possession, and as there was an order by the Court directing the receiver to deliver possession of the shares on payment of the purchase money subject to the. order of the Court hearing appeal No. 286 of 1965, there was no substance in the objection that the appellant was not in a opposition to deliver the shares. Mundhra did not raise any objection on the score that the appellate court has not made any direction asking him to pay the purchase money as against the delivery of the shares by the receiver or that the receiver was not directed by that Court to deliver the shares. The only legitimate inference from his conduct is that Mundhra was deliberately putting forward the plea that the appellant was not in a position to deliver the share-, and that it was not ready and willing to perform its part of the contract only to avoid payment.of the purchase money. Nor is there any substance in the contention of counsel for Mundhra that because the appellant obtained a stay of the order passed by Masud T. giving-

Mundhra a fortnight's time to pay the purchase money for taking delivery of the shares, the appellant- was precluded from contending that Mundhra committed default in the payment of the amount. In other words, there is no point in the contention of counsel that since the appellant itself obtained a stay of the order passed by Masud J. giving liberty to Mundhra to pay the purchase money within a fortnight from the date of the order, the appellant pre- vented Mundhra from performing his part of the obligation under the decree in suit No. 600 of 1961. When the appellant came to the Court with its application for rescission, there was already a rescission of the contract and the decree by its letter dated February 11, 1967, stating that Mundhra had forfeited his right to purchase the 51 per cent shares in pursuance of the decree in suit No. 600 of 1961, as he failed to fulfil his obligation in pursuance to the notice 'of the appellant on January 11, 1967. it only wanted a declaration by adjudgment by the Court that it was justified in doing so. A court generally adjudicates upon the antecedent rights of the parties. When a Court adjudges rescission of a contract or a decree, it is only concerned with the question whether the person rescinding it was justified in doing so. The Court does not create any right which parties did not possess when it makes a declaration that a contract has been validly rescinded. Merely because it is necessary for the Court to pass an order of rescission, when a controversy arises, it does not follow that it is the Court that rescinds the contract. The Court is only passing upon the validity of the rescission already made by the party. In Abram Steamship Company Ltd. and another v. Westville Shipping Company Ltd.(1), their Lordships of the House of Lords said Where one party to a contract expresses by word or art in an unequivocal manner that by reason of fraud or essential error of a material kind inducing him to enter into the contract he has resolved to rescind it, and refuses to be bound by it, the expression of his election, if justified by the facts, terminates the contract, puts the parties in status quo ante and restores things, as between them, to the position in which they stood before the con-, tract was entered into. It may be that the facts impose upon the party desiring to rescind the duty of making restitution in integrum. If so, be must discharge that duty before the rescission is, in effect accomplished. But if the other party to the contract questions the right of the first. to rescind, thus obliging the latter to bring an action at law to enforce the right he has secured for himself by his election, and he later gets a verdict, it is an entire mistake to suppose that it is this verdict which by itself terminates the contract and restores the antecedent (1) Law Reports, Appeal Cases, 1923, p. 773 at p. 781.