Santanter Kumar, J.
1. Malgar Singh filed a suit for specific performance of the agreement dated 23rd December, 1975 for the sale of the land measuring 27 kanals 18 marlas against Sham Kaur and Narain Kaur. This suit was decreed by the learned Sub Judge, 1st Class, Moga, vide judgment and decree dated 23rd October, 1979. The defendants in the suit preferred an appeal before this Court being Regular First Appeal No. 2262 of 1979, which was dismissed by this Court with costs. While affirming the judgment and decree of the learned trial court, the time for depositing the balance sale consideration was granted by this Court for a period of two months.
2. Keeping in view the controversies arising in the present cases, it would be necessary to refer to the operative part of the judgment and decree passed by this Court dated 6th February, 1991 which reads as under:-
'Execution of the sale deed was stayed by this Court, Sham Kaur defendant is, therefore, directed to execute the sale deed in favour of Malagar Singh plaintiff on receipt of the remaining amount of the sale consideration. The plaintiff may deposit the remaining amount of the sale consideration in the executing Court within a period of two months from today. Narian Kaur would join in the execution of the sale deed. On failure of the defendants to execute the sale deed within a period of two months, the plaintiff would be entitled to get the sale deed executed through the Court.' Against the judgment and decree above-referred, the defendants preferred a Letters Patent Appeal being LPA No. 541 of 1991, was dismissed in limine by Letters Patent Bench on 28th May, 1991. Resultantly, the judgment and decree in favour of the plaintiff attained finality. On 2nd of May, 1991, the plaintiff deposited the balance sale consideration before the trial Court and also submitted a draft sale deed. Objections to the sale draft deed were invited by the learned executing Court. Objections in relation to the draft sale deed on behalf of both the judgment debtors were filed on 27th February, 1993. These objections were dismissed by the learned executing court, vide its order dated 18th May, 1996. The order of rejection of objections filed by the judgment-debtors led to the filing of two revision petitions being civil revision No. 2468 of 3291 of 1996.
3. Civil Revision No. 2468 of 1996 was preferred by Sham Kaur, whereas Civil Revision No. 3291 of 1996 was preferred by Narain Kaur. During the pendency of these proceedings, the judgment-debtor also filed an application being Civil Misc. No. 2247-CI of 1996 in Regular First Appeal No. 2262 of 1979 praying that the plaintiff has failed to deposit the balance sale consideration within the stipulated period, therefore, contract should be rescinded within the purview and scope of Section 28 of the Specific Relief Act, 1963 (hereinafter referred to as the 1963 Act).
4. In response to the notice to C.M. No. 2247-CI of 1996, the plaintiff filed a reply and also moved an application being C.M. No. 2328-CI of CI of 1996 praying for extension of time and condonation of delay thereof as he had already deposited the Money in the trial court/executing Court on 22nd May, 1991.
5. Thus, by this order, I propose to dispose of both the afore-mentioned revision petitions and the application for review of contract as well as application for extension of time/condonation of delay, as they arise out of the same judgments/orders.
6. Before I proceed to discuss the merits or otherwise of the contention raised before the Court, it will be appropriate to refer to certain provisions of the relevant laws.
7. Whenever a decree is passed for specific performance of an agreement, it is for the Court to provide specific stipulation in the terms and conditions of the decree and the consequences of non-compliance thereof. The judgment-debtor or a person claiming through him or otherwise has a right to file objections under Section 47 or Order 21 Rules 96 to 98 of the Code of Civil Procedure (hereinafter referred to as the Code). The scope of objections to be filed is wide as it is a civil suit even for filing for a regular suit by the judgment debtor or the question relating to or depending upon the terms and conditions. Section 28 of 1963 Act vests the Court with wide discretion in relation to rescinding of contract for default of terms of the decree and for allowing extension of time for compliance of such terms, This provision has been incorporated specifically by the legislature, in addition to the powers vested in the Court under Section 148 of the Code where for any act or deed specifically to be done by the Court, the Court can extend time. The principles of rescinding the contract and the discretion of court in regard to exercise of its power under Section 28 of 1963 Act or the provisions of Code are well settled.
8. First and foremost the question that needs to be looked into by the Court is whether there is condition stipulated in the decree and if so what is its effect in the event of default or otherwise. The bare reading of the operative part of the judgment passed in the Regular First Appeal by this Court, while affirming the judgment of the trial Court for specific performance, clearly shows that the plaintiff was granted two months time to deposit the balance sale consideration. It is necessary to note here that the consequences for non compliance of the conditions of decree were certainly not stipulated in the decree passed itself. The power of the Court to extend the time for payment of balance sale consideration or for rescinding of the contract are the powers, which are discretionary with the Court. The provisions of Section 28 of the 1963 Act or 148 of the Code would have to be applied to the facts and circumstances of each case. There cannot be a straight jacket formula for determining such issues as a matter of rule, whether the Court should or should not grant extension or direct rescinding of the contract in terms of the statutory provisions. These provisions arc essentially prohibitory in their language and meaning and that is why Section 28 of 1963 Act vests a wide discretion in the Court and the legislature in its wisdom has used expression may and not shall. Once the terms and conditions of the decree are stipulated with regard to the consequences arising out of the default, it will not be jurisdiction of the Court to substitute or grant a relief not granted by the Court bf original jurisdiction. Admittedly, the plaintiff had deposited the balance sale consideration on 22nd May, 1991, while two months period from the date of decree would expire on 5th April, 1991. The amount tendered by the plaintiff decree-holder was deposited in the Court. The judgment-debtor filed two sets of objections, as afore-noticed which were ultimately dismissed by the learned executing court. It is interesting to note that in the objections filed by judgment debtor, no objection was raised that the amount in terms of the decree has not been deposited and therefore, contract between the parties was liable to be rescinded under Section 28 of 1963 Act or even under general power vested in the Court. Not taking this objection right at the very out set of the proceedings before the executing court would essentially apply the principle of acquiescence against the judgment debtor. It was for the judgment debtors to raise objections at the very out set which they failed to do. By their act specifically and implied, the judgment debtors acquiesced in the prayer of the decree-holder for condonation of delay. The money had admittedly remained laying before the executing Court. The obligation which the decree-holder was to perform was performed by him, may be few days later than the stipulated time in the decree. Absence of any penal consequences or withdrawal of the relief granted to the decree-holder being not the condition formulated in terms of the decree, it will be unjust and unfair for the court to rescind the contract at this stage and after lapse of such considerable time. This approach would further be fortified by every provision of Specific Relief Act inasmuch as under Section 20, 21, and 22 of the 1963 Act, the power to grant decree of specific performance is discretionary and Court is not bound to grant such decree, even if the circumstances were fully satisfied. Equally true is that where a decree for specific performance has already been granted by the learned trial Court and affirmed by the High Court in exercise of its discretionary jurisdiction, it will violate all settled cannons of civil jurisprudence if objection filed before the executing court are accepted, so as to disturb settled rights of the parties under the terms of the decree.
9. Learned counsel appearing for the decree-holder relied upon the judgments of this Court as well as Apex Court in the cases Amar Nath Jain v. Ram Parkash Dhir, (1987-1)91 Punjab Law Reporter 490 and Sardar Mohar Singh through Power of Attorney Holder Manjit Singh v. Mangilal @ Mangtya, 1997(2) S.C.C. 94, to contend that where the decree does not specifically provide a penal clause in the event of default of terms of the decree, normally the Court would not exercise the jurisdiction, condone the delay, if any, in depositing the balance sale consideration.
10. On the other hand, learned counsel appearing for the petitioner-judgment debtors relied upon the cases of Chanda v. Railhni, 1999(3) Civil Court Cases 357 and V.S. Palanichamy Chettiar Firm v. C.A.Iagappan and Anr., 1999(1) Civil Court Cases 712, to contend that wherever the decree postulates deposit of balance of sale consideration within the specified time and money is not deposited and there is no specific extension of time by the Court of competent jurisdiction, the contract for the agreement of sale should be rescinded.
11. As noticed above, there cannot be any hard and fast rule for determining such controversies, it would depend upon the facts and circumstances of each case. After discussing in great detail the provisions in relation to performance of obligation under an agreement to sell this Court in the case of Mohinder Singh v. Gurdial Singh, (1997-1)115 P.L.R. 73 held as under-
5. If the Court while decreeing the suit does not impose the condition that on happening of an event of default of terms of the decree by the plaintiff, the suit of the plaintiff would stand dismissed automatically, then the power of the Court to enlarge the time itself is indicated in the provisions of the Code of Civil Procedure and Specific Relief Act, 1963. The Court is its discretion if stipulates the time for payment of balance sale consideration without imposing any peremptory condition which shall follow in the event of default, then it is an order of the Court to do an act within the scope of the provisions of the Code of Civil Procedure, as such, the Court would have the power to extend the period under Section 198 of the Code of Civil Procedure. Section 148 of the Civil Procedure Code reads as under: -
'Where any period is fixed or granted by the Court for doing of any act prescribed or allowed under this Code, the Court may, in its discretion from time to time enlarge such period even through the period originally fixed or granted may have expired.'
The bare reading of this provision indicates that where the time has been granted by the Court to do an act prescribed or allowed by the Court the Court has discretion to enlarge such period in spite of the fact that the period granted has already expired. In contrast to the provisions of Rule 14 of Order 21 of the Code, Rule 12-A of Order 21 which are the provisions dealing with the passing of the decree for specific performance of the contract relating to transfer of the immovable property, does not postulate that the Court must pass peremptory order or impose such conditions in the decree. The provisions or Rule 14 of Order 12 of the Code, itself provide the consequences which shall follow from non-compliance of the conditions stipulated in the decree passed in a pre-emption suit. While in the provisions governing passing of a decree for specific performance, no such peremptory order in such decree is not absolutely essential. This aspect has been left to the discretion of the Court that the Court may or may not impose such conditions the default of when would result, in dismissal of the suit, restoration of property, or grant of possession of subject matter of the suit.'
6. At this stage, it also becomes relevant to refer to the provisions of Section 28 of Specific Relief Act, 1963. Section 28 reads as under:-
'Rescission in certain' circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed- (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 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 suit in which the decree is made to have the contract either so far as regards the party in default or altogether as the justice of the case may require.
(2) Where a contract is rescinded under Sub-section (1), the Court:-
(a) shall direct the purchaser or lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser of lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.
(3) if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in Sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely;-
(a) the execution of a proper conveyance or lease by the vendor or lessor:
(b) the delivery of possession or partition and separate possession, or the property on the execution of such conveyance of lease.
(c) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
5. The costs of any proceedings under this section shall be in the discretion of the Court.'
The bare reading of this provision indicates the intention of the legislature that if the purchaser or lessee does not deposit the amount within the specific period granted by the Court, the Court has discretion to grant further time for such payment or to pass any further orders as provided under Sub-rule (2) and Sub-rule (3) of the said section of the Specific Relief Act, 1963. It is the Court which passed the decree for specific performance that has to deal with an application by either party under Rule 1 or Section 28 of the said Act.'
12. The judgment debtors for the first time have filed on application after lapse of more than 5 years from the date of deposit of money in Court for rescinding the contract and that too before the appellate court on 26th August, 1996. In reply thereto, a specific prayer has been made by the decree-holder that the delay in depositing the money of 23 days, which ultimately was deposited on 22nd of May, 1991, should also be condoned.
13. Absence of specific penal consequences in the decree for default of its terms seen in conjunction with the conduct of the decree holder before the Court in not raising any such objection prior to 1996, leaves no scope for any other direction by the Court but to condone the delay of 23 days in depositing the money. Learned executing Court has dealt in great detail with the objections raised by the judgment debtors in regard to the draft sale deed. The terms and conditions of the draft sale deed to which the objections were filed have been accepted by the learned executing court for valid reasons and the opinion expressed by the Court is in consonance with the settled principles of law. The scope of revisional jurisdiction of this Court is limited and would normally be exercised where the orders passed by the Court below were without jurisdiction or suffers from error apparent on the face of record. The present cases do not fall in any of such categories.
14. For the reasons afore-stated, civil revision Nos.2468 and 3291 of 1996 are dismissed, leaving the parties to bear their own costs. Civil Misc. No. 2247-Ci of 1996 in Regular First Appeal No. 2262 of 1979 filed by the judgment-debtor for rescinding the agreement is hereby rejected. The delay of 23 days for depositing balance sale consideration before the learned executing court is hereby condoned. Civil Misc. Application No. 2328-CI or 1996 filed by the respondent No. 1 stands thus, allowed.
15. As a result of above discussion, the judgment-debtors are directed to execute the sale deed in favour of the decree-holder within a period of two months from today. In the event of default, in terms of the decree passed earlier, the Court would appoint a person to execute the sale deed in favour of the decree-holder. Parties to bear their own costs.