Specific Performance -- Non-Deposit of Balance Consideration Within Decretal Period -- No automatic rescission of decree absent express default clause
(i) Specific Relief Act, 1963, S.28 -- Rescission of Contract -- Deposit to Test Bona Fides of Decree Holder -- Permission granted to decree holder to deposit balance consideration after expiry of the period fixed by decree, given only to test bona fides, does not bar the right of judgment debtor to seek rescission of the contract. (ii) Civil Procedure Code, 1908, O.21 R.35 -- Execution of Decree for Specific Performance -- Decree Silent on Consequence of Default -- A decree fixing a time schedule for deposit of balance consideration, without specifying consequences of default, does not result in automatic rescission of the decree on failure to deposit within time. (iii) Specific Relief Act, 1963, S.28 -- Specific Performance -- Extension of Time for Deposit of Balance Consideration -- A decree for specific performance remains in the nature of a preliminary decree till execution of the sale deed, and the court retains jurisdiction to rescind the decree or extend time for deposit, unless the decree itself provides for automatic rescission on default. A prayer for extension, oral or written, may be made before or after expiry of the stipulated period. Being an equitable relief, the court must weigh conduct of parties and whether willful default of decree holder warrants rescission. (iv) Civil Procedure Code, 1908, S.96 -- Doctrine of Merger -- Dismissal of Appeal for Non-Prosecution -- Merger of the decree of trial court in the order of appellate court applies only where the higher forum entertains the appeal or revision and passes an order on merits. Where the appeal is dismissed for non-prosecution, there is no merger of decree of trial court in order of appellate court.
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