Faizal Eroth v. Venkalath Raveendran and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** **RFA.No. 116 of 2018** **AGAINST THE ORDER IN OS 66/2007 of THE SUB COURT,KOZHIKODE DATED 28-02-2017** ## **APPELLANT/S:** **FAIZAL EROTH, AGED 47 YEARS S/O EROTH MOOSA HAJI, 17/1568 CHINTHAVALAPPU FLAT, KASABA AMSOM, KARIKKUNNU DESOM, KOZHIKODE TALUK** **BY ADVS. SRI.VINOD RAVINDRANATH SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.SAJU.S.A SRI.T.KRISHNANUNNI (SR.) SRI.VINAY MATHEW JOSEPH** ## **RESPONDENT/S:** |1|**VENKALATH RAVEENDRAN, AGED 82 YEARS**| |---|---| ||**S/O DR.PARAN, VENKALATH HOUSE**| ||**KASABA AMSOM AND DESOM OF KOZHIKODE TALUK- 673 001**| |2|**DR.VENKALATH PRABHAKARAN, AGED 70 YEARS**| ||**S/O DR.PARAN, VENKALATH HOUSE**| ||**KASABA AMSOM AND DESOM OF KOZHIKODE TALUK- 673 001**| |3|**ABDUL RAUF, AGED 42 YEARS**| ||**S/O KATHIM, SKYILI MARINE GATE I.D,**| ||**NEAR CORPORATION OFFICE,**| ||**NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK-673 001**| ||**BY ADVS.**| ||**SRI.P.B.KRISHNAN**| ||**SMT.M.SHAJNA**| ||**SRI.K.M.FIROZ**| ||**SRI.P.B.SUBRAMANYAN**| 2 ## **RFA.No. 116 of 2018** **SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL)** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **RFA.No. 116 of 2018** ## **JUDGMENT** ## **K.HARILAL,J** **The appellant is the first plaintiff in O.S No.66 of 2007 of the Sub Court, Kozhikode and the respondents 1 and 2 are the defendants and the 3[rd] respondent herein is the second plaintiff in the said suit. (The parties are referred to as in the original suit). The said suit was one for specific performance of an agreement for sale of an immovable property or in the alternative, for the return of money paid to the defendants as advance. The prayer for specific performance was declined and allowed the alternative relief by granting a decree for return of a sum of Rs.75lakhs paid as advance towards the sale consideration. Aggrieved by the denial of** 4 **RFA.No. 116 of 2018** **specific performance, the plaintiffs preferred RFA No.819 of 2008 before this Court and this Court allowed the appeal and granted a decree for specific performance. As per the decree, the defendants were directed to measure the property and satisfy the actual extent of the property available for sale to the plaintiffs within one month from the date of judgment passed by this Court and the plaintiffs were directed to deposit the balance consideration before the court below within one week from the date of measurement. Further, the defendants were directed to execute sale deed within one month from the date of receipt of notice as to the deposit. But the defendants have not taken any steps to measure the property as directed by the decree. An Advocate Commissioner was appointed on the application filed by the plaintiffs and the** 5 **RFA.No. 116 of 2018** **Commissioner measured the property with the assistance of a surveyor on the basis of a survey plan. But the defendants have not co-operated with the Commissioner and they were not present at the time of measurement. The Commissioner submitted a report with a plan stating that the total extent of property is 77.64 cents. Aggrieved by the measurement of the property in the absence of the defendants, the plaintiffs filed an application to remit the commission report and plan to the Commissioner for measuring the property again, on the basis of the title deed and sought for a direction to the defendants to be present at the time of measurement and satisfy the plaintiffs as to the extent of property available for sale and actual boundaries. The court below allowed the said application and after measuring the property** 6 **RFA.No. 116 of 2018** **again, in the presence of the defendants, the Commissioner filed a second report with a plan stating that the actual extent of the property is 77.11 cents only.** **2. Thereafter, the defendants filed O.P.(C) No.1855/2015 before this Court, challenging the order remitting the Commission report to the Commissioner and this Court set aside the said report and directed the court below to hear the application seeking the order to remit the commission report and pass order afresh. In the meantime, the second report was filed before the court below. So, the application to remit the commission report was also closed. The defendants have filed I.A No.3606/2014 on 23.09.2014 seeking an order rescinding the contract for sale under Section 28 of the Specific Relief Act (herein after referred to as 'the Act'). Subsequently,** 7 **RFA.No. 116 of 2018** **the first plaintiff filed I.A No.2776/2016 for permitting him to deposit the entire balance consideration in court and getting the time re-fixed to deposit the balance consideration. The court below herd both the aforesaid applications together and allowed I.A No.3606/2014 by granting an order rescinding the contract for sale and dismissed I.A No.2776/2016 seeking re-fixation of time to deposit balance consideration. But the court below directed the defendants to return a sum of Rs.75lakhs with interest, which was received by them as advance, to the plaintiffs. The legality and correctness of the findings, whereby I.A No.3606/2014 stands allowed and I.A No.2776/2016 stands dismissed are assailed in this appeal.** **3. Heard Sri.Krishnanunni, the learned Senior counsel appearing for the appellant/1[st] plaintiff,** 8 **RFA.No. 116 of 2018** **Sri.P.B.Krishnan, the learned counsel appearing for the respondents 1 and 2/defendants and Sri.K.M.Firoz, the learned counsel appearing for the 3[rd] respondent/2[nd] plaintiff.** **4. The learned counsel for the appellant/1[st] plaintiff advanced arguments contending that there was no breach of obligation as per the decree, from the part of the plaintiffs and the plaintiffs had no occasion to deposit the balance consideration as per the decree and thereby they are entitled to get the time re-fixed. According to the learned counsel, since the defendants have not taken any steps to measure the property, so as to satisfy the plaintiffs, as to the actual extent of the property available for sale, there was no occasion to pay or deposit the balance consideration for the sale and it was not possible to pay or deposit balance consideration,** 9 **RFA.No. 116 of 2018** **without understanding the actual extent of property available for sale and the boundaries. The learned counsel further submits that, where the vendor fails to perform his part in compliance with the direction in the decree, it amounts to the failure of the condition precedent, for the performance of the vendee and the vendee is not liable to perform his part of the contract for sale. Thus, the plaintiffs were not liable to deposit the balance consideration, when the defendants failed to measure the property and satisfy the plaintiffs as to the actual correct extent of property available for sale and the boundaries. Even though a Commissioner was appointed to measure the property, on plaintiffs' application, the defendants have not co-operated with the Commission to measure the property or to show the** 10 **RFA.No. 116 of 2018** **boundaries. So the Commission could not find out the correct extent of the property or the actual boundary, as per the title deed. In such a circumstance, the plaintiffs were not liable to pay balance consideration on the basis of that Report and plan, which were prepared on the basis of survey plan only, without understanding the extent available under the title deed. The failure to perform the condition precedent, which was essential for further performance of the vendee, made the vendor disentitled to get an order rescinding the contract for sale, under Section 28 of the Act.** **5. On the other hand, Sri.P.B.Krishnan, the learned counsel for the respondents 1 and 2/defendants raised a preliminary objection that the appeal itself is not maintainable against orders passed under Section 28(1) of the Act and** 11 **RFA.No. 116 of 2018** **the revision is the only remedy available to the plaintiffs in accordance with law. The court fee paid is also not sufficient. The learned counsel further submits that though the defendants failed to take steps to measure the property, in compliance with the direction of the court in the decree, a Commission was appointed on the application of the plaintiffs and the Commissioner has submitted two reports and plans. So the plaintiffs should have deposited the balance sale consideration within one week from the date of measurement or the date of filing of either the first report or the second report. But the plaintiffs have failed to do so and thereby there is a breach of obligation from the part of the plaintiffs and the defendants are entitled to get the contract for sale rescinded under Section 28(1)of the Act. Further it is submitted that,** 12 **RFA.No. 116 of 2018** **where there is a breach of obligation from the part of the vendee to perform his part in the decree, he is not entitled to get the time stipulated re-fixed to deposit the balance sale consideration. Thus, the learned counsel for the defendants advanced arguments to justify the recession of the contract for sale and the dismissal of the application to re-fix the time for depositing the balance sale consideration.** **6. Sri.K.M.Firoz, the learned counsel appearing for the 3[rd] respondent/second plaintiff submits that the first plaintiff alone cannot be allowed to deposit the balance sale consideration and get the sale deed executed in his name only, as the second plaintiff has not relinquished his right under the decree in favour of the first plaintiff. According to the learned counsel, since the decree is indivisible, the fist** 13 **RFA.No. 116 of 2018** **plaintiff alone has no right to pay the balance consideration and get the decree executed in his name alone.** **7. In view of the arguments at the bar the first point to be considered is whether an appeal is maintainable or not against an order rescinding the contract for sale of an immovable property, passed under Section 28 of the Act.** **8. Section 28(1) of the Act reads thus:-** **(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.** 14 **RFA.No. 116 of 2018** **9. On an examination of various provisions under the Act, it could be seen that no specific provision is prescribed for challenging an order passed under Section 28 of the Act. We have meticulously analysed the nature of adjudication envisaged under Section 28 of the Act and we find that the decree for specific performance in a suit is only in the nature of a preliminary decree and when the Court passes a decree allowing prayer for specific performance under Section 20 of the Act, the Court does not lose its jurisdiction and power over the subject matter, nor it does become** _**functus officio,**_ **on passing such a decree. On an analysis of the aforesaid provision, we find that even after passing of the decree, granting specific performance, the court which passed the decree retains the jurisdiction and the court is** 15 **RFA.No. 116 of 2018** **empowered to rescind the contract for sale, in case of failure to deposit the balance consideration. That apart, the court has jurisdiction and power to extent the time granted for depositing the balance consideration. The power under Section 28 of the Act is discretionary as well as wide so as to annull a decree. A decree can be annulled after a complete and conclusive adjudication of the performance and default already made under the decree by the vendor and vendee. A decree can be rescinded by another decree only and it cannot be by an order.** **10. According to Section 2(2) of the CPC decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the right of the parties with regard to or any of the matters in controversy in the suit and may be** 16 **RFA.No. 116 of 2018** **preliminary or final.** **11. We are of the opinion that the order, under Section 28 of the Act rescinding the contract also is the result of an adjudication, which conclusively determines the right of the vendee to get the sale deed executed and liability of the vendor to execute the sale deed, falling under the definition of 'decree' envisaged under Section 2(2) of the CPC. Therefore, we find that the order rescinding the contract for sale or lease of an immovable property would amount to a decree. If the result of an adjudication under Section 28 of the Act is a decree, the parties, against whom such an order has been passed, must have the right to file an appeal as provided under Section 96 of the CPC. In the above analysis we find that an appeal is maintainable against the order rescinding the** 17 **RFA.No. 116 of 2018** **contract for sale passed under Section 28 of the Act. The above view is supported by decisions in** _**Chand (dead) through LRs.**_ **v.** _**Rattni and another [2007(14) SCC 26]**_ **and in** _**N.V.S.M Anandaval**_ **e v.** _**K.T.Santhanakrishnan [AIR 2010 Madras 204].**_ **12. Next question to be considered is whether the court fee paid in this appeal is adequate or not.** **13. Admittedly, the plaintiffs have paid Rs.10/- only as court fee. According to the counsel for the plaintiffs, the said payment of Rs.10/- is sufficient as the plaintiffs had paid Rs.10/- only before the trial court for the interlocutory applications, and the same is justified in view of Section 52 of the Kerala Court Fees and Suits Valuation Act, 1959.** **14. Per contra, the learned counsel for the respondents/defendants submits that the court** 18 **RFA.No. 116 of 2018** **fee paid is not adequate and the plaintiffs would have paid Rs.25/- as court fee in view of Schedule II Article 3(A)(1)(a) of the Court Fees and Suits Valuation Act, 1959.** **15. We find that, as rightly submitted by the learned counsel for the defendants, the order under challenge in this appeal is an order relating to a suit, the value of which exceeds Rs.1,000/-. So Schedule II Article 3(A) (1)(a) of the Kerala Court Fees and Suit Valuation Act, is the relevant provision under which the court fee is payable in this appeal and Rs.25/- is the court fee payable. Therefore, the plaintiffs are directed to pay the balance court fee on or before 10.01.2019.** **16. The next question to be considered is whether the court below is justified in rescinding the contract for sale after the** 19 **RFA.No. 116 of 2018** **decree, invoking the power under Section 28 of the Act. Firstly, let us examine the decree and the decree reads thus:-** **i. The impugned judgment and decree passed by the trial court are modified. In supersession of the judgment and decree the appellants are granted a decree of specific performance as prayed for** **ii. Within one month from today the respondents shall fix the date for measuring out the plaint schedule property and satisfy the appellants regarding the exact extent of the plaint schedule property. Notice regarding the date of measurement shall be given to the appellants well in advance.** **iii. Within one week from the date of measurement, the appellants shall deposit the balance sale consideration before the court below with notice to the respondents, as to the deposit.** **iv. Within one month from the date of receipt of the notice as to the deposit, the respondents shall execute the sale deed in respect of the plaint schedule property, showing the correct extent, in favour of the appellants, at appellants costs. Before** 20 **RFA.No. 116 of 2018** **executing the sale deed, the respondents shall satisfy the appellants that the property is free from encumbrances.** **v. After the execution of the sale deed, the respondents can withdraw the balance sale consideration deposited by the appellants before the court.** **vi. If the respondents failed to execute the sale deed as ordered above within the specified time limit, on the expiry of the same, the appellants can move the court to execute a sale deed in their name by the court on behalf of the respondents.** **vii. The appellants are entitled to recover their costs in the original suit as well as in the appeal.** **17. The terms of decree consist of seven** **clauses. The first clause supersedes the judgment and decree passed by the Trial Court. The second clause imposes an obligation on the defendants/vendors to do the following acts:-** **(i) The defendants shall fix the date for measuring out the property within one month from the date of judgment; ie;** 21 **RFA.No. 116 of 2018** **28.02.2017.** **(ii) The defendants shall satisfy the plaintiffs regarding the exact extent of the plaint schedule property available for sale; and** **(iii) Notice regarding the date of measurement shall be given to the plaintiffs well in advance.** **The second clause imposes a liability on** **the plaintiffs/vendees to do following acts, on performance of the defendants.** **(i) The plaintiffs shall deposit the balance sale consideration before the trial court within one week from the date of judgment.** **(ii) Notice shall be given to the defendants informing the deposit.** **The 4[th] clause again imposes the liability on the defendants/vendors on the performance of the plaintiffs, to do the following act.** **(i) The defendants shall execute a sale deed in respect of the plaint schedule property showing the correct extent in favour of the plaintiffs within one month from the date of receipt of the** 22 **RFA.No. 116 of 2018** **notice as to deposit.** **18. On a marshaling of the acts to be done under the aforesaid clauses, we find that the aforesaid clauses are inextricably interconnected and the latter is contingent upon the former. The obligations imposed on the vendor and vendee are so arranged in a way that the performance of the latter is conditional on the performance of the former. It is well discernible from the sequence of steps narrated in clause (ii) to (iv) and more particularly clause (ii) that the above clauses were made and incorporated in the decree for the reason that the exact extent of the property, available for sale under the title deed and for depositing balance consideration was not clear or certain. If the exact and actual extent of property available for sale was clear or known, certainly, this Court would not have** 23 **RFA.No. 116 of 2018** **incorporated the above said clauses in the decree. On the other hand, this Court could have directed the plaintiffs to deposit the balance sale consideration within one month from the date of judgment itself. It reveals the fact that unless the actual and exact extent of the property for which the balance consideration has to be deposited and the sale deed could be executed are made clear and certain, the balance consideration could not have been paid or deposited in court. Thus, the clauses incorporated in the decree make it clear that the measurement of the property, by the defendants himself, to satisfy the plaintiffs as to the actual and exact extent of property, is an act to to be performed by the vendor for the deposit of balance consideration by the vendee. In other words, the defendants** 24 **RFA.No. 116 of 2018** **were made liable to satisfy the plaintiffs as to the extent of plaint schedule property for which the balance consideration has to be deposited.** **19. To sum up, clause (ii) is a condition precedent, which should be performed by the defendants/vendors, for the performance of clause (iii), by the plaintiffs/vendees. In other words, unless and until the direction under clause (ii) is performed and satisfied by the defendants/vendors, the plaintiffs are not liable to perform their part under clause (iii).** **20. Let us examine the sequence of events occurred after passing the decree and before filing of I.A No.2676/2010. The decree, granting specific performance of the contract for sale was passed on 29.07.2013. As per** 25 **RFA.No. 116 of 2018** **clause(ii) of the decree, the defendants ought to have taken steps to measure the property and inform the plaintiffs the date of measurement, to satisfy the actual extent of property available for partition before 28.08.2013. The defendants have not taken steps for measuring the plaint schedule property and satisfy the plaintiffs regarding the actual and exact extent of the plaint schedule property available for sale under the title deed before or after 28.08.2013. The plaintiffs have filed I.A No.4804/2013 on 05.09.2013 to depute an Advocate Commissioner to measure the property and report to the Court as to the actual extent of the property available for sale. The said interlocutory application was allowed. The Commissioner was appointed and he filed the report on 28.05.2014, stating that the actual** 26 **RFA.No. 116 of 2018** **extent of property available for sale is 77.64 cents. On 29.07.2014, the plaintiffs filed I.A No.2897/2014 seeking to remit the commission report, on the ground that the defendants were not present at the time of measuring the property and due to the non-co-operation of the defendants the actual extent of the property available for sale under the title deed was not ascertained and reported in the commission report and plan. During the pendency of the said application, seeking to remit commission report to the Commissioner, the defendants filed I.A No.3606/2014 under Section 28(1) of the Act on 23.09.2014, seeking an order rescinding the contract for sale. Thus, the defendants have expressly declared their unwillingness to execute sale deed on 23.09.2014, without complying the direction in** 27 **RFA.No. 116 of 2018** **clause (ii) of the decree. Subsequently, I.A No.3606/2014 was dismissed and I.A No.2897/2014 was allowed** _**ex parte,**_ **and the Commission report was remitted to the Commissioner for measuring the property again. Thereafter, the defendants filed an application to restore I.A No.3606/2014 and the court below allowed the said application and I.A No.3606/2014 was restored to the file on 10.07.2015. The defendants challenged the order allowing the remittance of the Commission report to the Commissioner by filing OP(C)No.1855/2015 before this Court and this Court on 06.08.2015 allowed the said OP and directed the court below to consider the application to remit the Commission report again. In the meantime, on 05.08.2015, the Commissioner, after measuring the property, again filed her second report** 28 **RFA.No. 116 of 2018** **with plan, stating that the actual area available for sale is 77.11 cents only. Since the Commissioner has already filed a second report, the application to remit the commission report was closed on 11.09.2015. Thereafter, I.A No.3606/2014 and I.A No.2676/2010 were heard together on 28.02.2017 and allowed I.A No.3606/2014 and dismissed I.A No.2676/2010 and this common order is under challenge in this appeal.** **21. Admittedly, the defendants have not taken steps to measure the plaint schedule property within one month from the date of judgment or thereafter to satisfy the plaintiffs as to the actual and exact extent of property available for sale. It follows that the defendants have failed to perform their part as contemplated under clause (ii) of the** 29 **RFA.No. 116 of 2018** **decree, which was condition precedent for the performance of clause (iii) by the plaintiffs. It amounts to breach of an obligation imposed on the defendants/vendors under the decree. Thus, no occasion had arisen to deposit balance sale consideration by the plaintiffs. Section 28 of the Act is a specific provision in the Specific Relief Act, which gives a right to recession of the contract for sale, after passing the decree. But the right to recession under Section 28 of the Act can be made available to the vendor, who have performed his part as per the decree and the vendor who failed to perform his part as contemplated in the decree is not entitled to get the contract rescinded. Put it differently, the breach of obligations from the part of the vendee would make the vendor entitled to get the contract** 30 **RFA.No. 116 of 2018** **for sale rescinded, only if, the vendor had also performed his part of the contract, without failure. We further find that unless the property was measured at the instances of the defendants/vendors himself and satisfied the actual extent, the plaintiffs could not have deposited the balance consideration. Thus, the breach of obligation from the part of the defendants/vendors made them not entitled to get the contract rescinded.** **22. The learned counsel for the defendants vehemently contended that the plaintiffs had no money to pay the balance sale consideration after passing of the decree and the defendants have succeeded in proving the same before the court below. In order to substantiate the said contention, the learned counsel drew our attention to the copy of W.P.(C) No.30820/2013** 31 **RFA.No. 116 of 2018** **filed by the 1[st] plaintiff before this Court against the Kerala State Co-operative Bank and the judgment passed in that writ petition. According to the learned counsel, in the said writ petition, the 1[st] plaintiff had admitted that due to financial stringency, he could not clear the liability due to the Kerala State Cooperative Bank. On 19.08.2016, the defendants filed I.A No.3140/2016, seeking a direction to the plaintiffs to produce bank accounts and income tax returns and in that I.A the 1[st] plaintiff filed a counter affidavit stating that, he has no bank account and he has not filed the income tax returns. Thus, the lack of money in the hands of 1[st] plaintiff is evident from the aforesaid documents according to the learned counsel for the defendants.** **23. We are unable to accept the said** 32 **RFA.No. 116 of 2018** **submission, because, we have already arrived at a finding that there was no occasion to deposit the balance consideration due to the willful breach of obligation from the part of the defendants and thereby the plaintiffs were deprived of depositing balance consideration. That apart, such an enquiry as to the availability of liquid cash in hand or bank account of the plaintiffs would go beyond the scope of consideration in an application under Section 28 of the Act. It is to be remembered that the decree for specific performance was passed after arriving at a finding that the plaintiffs are ready and willing to pay the balance consideration and they have the capacity to pay the balance consideration. The scope of enquiry in this application is confined to whether the vendee had paid the** 33 **RFA.No. 116 of 2018** **balance consideration as directed by the decree and if not, whether the vendee is justified in not paying the balance consideration. We have already arrived at a finding that the plaintiffs are justified in not paying the balance consideration as there was no occasion for the same as stipulated in the decree and it was so happened due to the non-compliance of the condition precedent in clause (ii), by the defendants. When no occasion had arisen to deposit balance consideration enquiry as to the financial capacity of the vendee is irrelevant and unwarranted. Moreover, money is a thing which can be raised by different ways from different sources, which are in the special knowledge of each person, at any time. If that be so, the availability of liquid cash in hand or in the bank account alone cannot be taken as** 34 **RFA.No. 116 of 2018** **a conclusive proof of the financial capacity of a person to raise funds for purchasing a landed property. Commonly, money would be raised as and when required. More importantly, we are of the opinion that if the plaintiffs had no money or financial capacity to raise the fund to pay the balance consideration, certainly, they would not have filed the Commission application to get the property measured, particularly, when the defendants failed to do so. So the filing of the application to get the property measured by a Commission would give rise to an inference that the plaintiffs have financial capacity to raise funds to get the sale deed executed. In the above view, we reject the arguments advanced by the learned counsel for the defendants that the plaintiffs had no financial capacity to raise the funds.** 35 **RFA.No. 116 of 2018** **24. Further, the learned counsel for the defendants argued that the defendants have preferred a Special Leave to Appeal (Civil) No.34975/2013 before the Hon'ble Supreme Court, challenging the impugned decree for specific performance. So, the defendants could be justified in not complying with the direction in clause(ii) of the decree. We are unable to accept the said argument in view of the Annexure-A order dismissing Special Leave to Appeal (Civil)No.34975/2013 and the order dismissing the review petition No.1478/2014 passed by the Hon'ble Supreme Court. The order dismissing the Special Leave to Appeal (Civil)No.34975/2013 was passed on 21.01.2014 and the order dismissing the review petition No.l1478/2014 was passed on 21.08.2014. It is needless to say that no order staying the** 36 **RFA.No. 116 of 2018** **operation of the impugned decree was obtained in the said Special Leave to Appeal (civil) or in the review petition.** **25. We are of the opinion that mere filing of a Special Leave to Appeal (Civil) before the Supreme Court cannot be a reason to flout the direction of the High Court in a decree, unless the operation of the decree is stayed by the Supreme Court. That apart, we find that the review petition was dismissed on 21.08.2014 and I.A No.3606/2014, seeking an order rescinding the contract was filed before the court below on 23.09.2014, just about one month after the dismissal of review petition. The filing of the application for rescission of contract, immediately after the dismissal of the review petition by the Supreme Court would show that the defendants were not willing to execute the** 37 **RFA.No. 116 of 2018** **sale deed in compliance with the decree for specific performance from the very beginning and such a decision was taken deliberately as well as consciously and it must be read along with non-compliance with clause (ii) of the decree.** **26. The learned counsel further submitted that the defendants have filed interrogatories as I.A No.1815/2015 and sought for a direction to answer to the interrogatories. But the same was dismissed by the court below and the same was confirmed erroneously by the Single Bench of this Court. We have gone through the order passed in OP(C) No.2629/2015, whereby this Court affirmed the order passed by the court below, dismissing the interrogatories. It is pertinent to note that this Court affirmed the order, dismissing the interrogatories passed by** 38 **RFA.No. 116 of 2018** **the court below, after reserving a right to file such an application in the later stage. We do not find any illegality in the order passed by this Court.** **27. It is true that the plaintiffs himself filed an application for appointing a Commission and a Commission was appointed, she measured the property and submitted a report and plan, on the basis of the survey plan. But, the defendants were not present at the time of measurement and as a result, the plaintiffs were constrained to approach the court below seeking a direction to the defendants to be present at the time of measurement to be conducted again and to measure the property on the basis of title deed and the boundary shown by the defendants.** 39 **RFA.No. 116 of 2018** **28. We are of the opinion that the Commission report made available on record on the application of the plaintiffs cannot be treated as a commission report as intended by this Court, when clause (ii) was made in the decree, because, an obligation was cast on the defendants to satisfy the plaintiffs as to the extent of property available for sale and for which balance consideration has to be deposited. The condition in clause (ii) can never be satisfied by the report filed by the Commissioner on the application of the petitioner, particularly, when the defendants have not co-operated with the Commissioner to measure the property and no measurement was made on the basis of the title deed or boundary shown by the defendants. It is pertinent to note that in a later stage only the defendants** 40 **RFA.No. 116 of 2018** **accepted the second commission report. The second Commission report stating that actual extent of the property is only 77.11 cents would justify the stand taken by the plaintiffs against the 1[st] Commission report and plan, which stated the extent as 77.64 cents.** **29. In the meantime, before the filing of second report, the defendants have filed I.A. No.3606 of 2014 seeking rescission of the contract. In the above view, we reject the finding of the court below that the plaintiffs ought to have deposited the balance consideration, within fifteen days from the date of filing the first or second commission report. The defendants cannot be heard to say that the plaintiffs ought to have deposited the balance consideration within seven days from the date of filing of the commission report,** 41 **RFA.No. 116 of 2018** **when they have not co-operated with the Commissioner for measuring the property. On an analysis of the findings, whereby the court below rescinded the contract, we find that the court below miserably failed to analyse the obligations cast on the vendor and vendee in its correct perspective and the consequence caused by the breach of obligations.** **30. The learned counsel drew our attention to I.A No.3178/2015 and submitted that in the said application, the defendants had stated that they have no objection to any extent of property stated either in the plaint or in the first commission report or in the second commission report. We have meticulously gone through the said application and we find that the said application was filed on 21.08.2015 only, whereas the application seeking the** 42 **RFA.No. 116 of 2018** **rescission of contract was filed much earlier on 5.11.2014. It is needless to say that there is no** _**bona fide**_ **in the said statement when an application seeking rescission of contract was pending before the court below and the defendants were pressing for the same. Had it been a** _**bona fide**_ **offer, they could have taken such a stand either within one month from the date of decree or immediately after filing of the first commission report or immediately after the dismissal of the review petition by the Hon'ble Supreme Court and they would not have challenged the order remitting the 1[st] respondent to the Advocate Commissioner, before this Court by filing OP(C) No.1855/2015. Therefore, we find that the said application was filed in a highly belated stage, to make it to appear that they had no objection to the** 43 **RFA.No. 116 of 2018** **Commission reports. No** _**bona fide**_ **can be attributed to such an application, which was filed during the pendency of the application seeking order of rescission.** **31. The next question is, whether the court below is justified in rejecting the application seeking an order, re-fixing the time for deposit of balance consideration. There arises the question, does the relevant provision under Section 28 the Act permit such an extension or re-fixation of time? On an analysis of Section 28 of the Act, we find that 'the vendee should pay purchase money within the period allowed by the decree or such further period as the court may allow'. The second limb of the above quoted part of the Section, expressly granted the power to the court to extend the period for depositing balance consideration, for a further** 44 **RFA.No. 116 of 2018** **period as the court may allow. Therefore, unambiguously, it can be held that the court which passed decree for specific performance, has the power to grant time to deposit balance consideration and to extend that period, as the court thinks fit.** **32. In the instant case, we have already found that there was a breach of obligation from the part of the defendants and, that made the plaintiffs deprived of an opportunity to deposit the balance consideration, as directed by this Court. Further, we have found that the defendants have failed to satisfy the plaintiffs as to the actual and correct extent of property available for sale. In the above context, we do not find fault with the plaintiffs, in not remitting the balance consideration. That apart, there is no material** 45 **RFA.No. 116 of 2018** **available on record to arrive at a finding that there was wilful negligence or laches from his part, in not depositing the amount. It is to be borne in mind that, we have already arrived at a finding that the plaintiffs were not liable to deposit the balance consideration, within 15 days from the date of measurement or from the date of submission of commission report, which was prepared and submitted on the application of the plaintiffs, as the reports did not satisfy clause(ii) of the decree. In the above view, we are of the opinion that the court below went wrong by rejecting the application seeking to re-fix the time to deposit balance consideration, without considering the circumstances under which he could not deposit the balance consideration, as directed by this Court. No occasion has arisen,** 46 **RFA.No. 116 of 2018** **as directed by this Court to deposit the balance consideration. Therefore, the plaintiffs are entitled to get the time refixed to deposit the balance consideration. The plaintiffs in the suit are given one month time from today to deposit the balance sale consideration.** **33. The 3[rd] respondent/second plaintiff filed a counter affidavit in I.A No.2776/2016 stating that the first plaintiff alone has no right to pay the balance consideration as he has not relinquished his right under the decree and the first plaintiff is not entitled to get the sale deed executed in his favour alone. More over, in the counter affidavit he has stated that he is also ready to pay the balance consideration in terms of the decree. When the second plaintiff also expressed his willingness** 47 **RFA.No. 116 of 2018** **to pay the balance consideration in his counter affidavit, we do not find any change of circumstance after passing the decree and I.A No.2676/2016 shall be deemed to have been filed for both plaintiffs, in view of Order 21 Rule 15 of CPC.** **34. As per order 21, Rule 15, where a decree has been passed jointly infavor of more persons than one, one of the co-decree holder may, unless the decree imposes any condition to the contrary, apply for execution of the decree for the benefit of all of them. The same principle can be applied in an application for re-fixation or extension of time to deposit the balance consideration filed under Section 28 of the Act. Therefore, the application filed by a co-decree holder, seeking re-fixation or extension of time is also in the order and** 48 **RFA.No. 116 of 2018** **maintainable.** **35. But subsequently, in this appeal, the 3[rd] respondent/second plaintiff filed a counter affidavit stating that he accepted the rescission order and he is desirous of getting back his share in the advance amount as ordered by the court below. We are afraid of the submission made by the learned counsel for the second plaintiff in support of the said contention. We are not inclined to accept such a change of stand, which is different from the readiness and willingness to pay balance sale consideration expressly made in the counter affidavit filed before the trial court in I.A No.2676/2016. So we reject the said arguments advanced by the learned counsel for the second plaintiff. But in the above context, we are inclined to clarify the legal position as given** 49 **RFA.No. 116 of 2018** **below. What is the legal effect and impact of the withdrawal of a co-decree holder, among more decree holders than one, from the terms of the decree directing the seller to execute the sale deed on payment of balance sale consideration by the buyers.** **36. We make it clear that unlike other decrees, since decree for specific performance for a contract for sale of an immovable property is a decree which imposes a liability to pay the balance consideration for the execution of the sale deed, on the decree holders, where there are more than one decree holders, those who pay the balance consideration in compliance with the terms of the decree alone are entitled to get the sale deed executed in their names also. Since the decree for specific performance of the contract** 50 **RFA.No. 116 of 2018** **for sale of an immovable property is an indivisible decree, where a decree for specific performance of a contract for sale has been passed in favour of more persons than one, withdrawal of anybody among the decree holders from the terms of decree will not annul the decree if the remaining decree holders are ready to perform the terms of decree and they must be allowed to perform the terms of decree, so as to get the sale deed executed in their favour alone. The decree holder who did not comply the terms of the decree by not paying balance consideration is not entitled to get the sale deed executed in his name also. No doubt, he would be left with remedies, in respect of his share in the advance amount, if any, by separate and independent proceedings against the other decree holders.** 51 **RFA.No. 116 of 2018** **37. In the above analysis, the impugned orders passed in I.A No.3606/2014 and 2676/2016 are set aside. I.A No.3606/2014 is dismissed and I.A.No.2676/2016 is allowed. The plaintiffs in the Original Suit No.66/2007 are hereby directed to deposit the balance consideration, within a period of one month from today and on deposit of the said amount within one month from today, clause (iv) to (vii) in the decree dated 28.02.2017 would come into operation and the respondents 1 and 2/defendants are liable to perform the obligations in the aforesaid clauses, as directed by this Court in the judgment and decree passed in RFA No.819/2008.** **The appeal is allowed.** **Sd/-** **K.HARILAL JUDGE** **Sd/-** **ANNIE JOHN JUDGE** SB/DST/12/12/2018