D.K. Jain, J.
(1) This is defendant application under Section 28 of the Specific Relief Act, 1963 (hereinafter referred to as the Act) for rescinding the contract dated 16 May 1984.
(2) On the basis of an agreement to sell dated 16 May 1984, (Ex. P-3), purportedly acknowledged by the defendant vide his various letters, on 10 May 1989, the plaintiff filed a Suit (No. 1412/89) for specific performance of the said agreement to sell, against the defendant - his real elder brother in respect of undivided half share of the house property bearing No. E-3, Jangpura Extension, New Delhi.
(3) The suit was compromised and a consent decree for specific performance of agreement to sell was passed on 9 November 1990, in favor of the plaintiff and against the defendant, directing the defendant to execute the sale deed in respect of undivided half share of the affronted property and get it registered in favor of the plaintiff. In terms of the said compromise, the plaintiff was required to pay to the defendant a sum of Rs. 1,35.600.00 instead of Rs. 1,15,850.00 , initially agreed to be paid to the defendant.
(4) Alleging that in terms of the agreement to sell dated 16 May 1984, and the compromise decree dated 9 November 1990, the plaintiff had to pay the said amount of Rs. 1,35,600.00 and have the sale deed executed in three months time but the plaintiff was not ready and willing and infact failed to perform his obligations, that the compromise decree was in the nature of preliminary decree which had become unexcitable due to non performance of this obligations by the plaintiff, the defendant has filed the present application for rescinding the contract.
(5) The application is opposed by the plaintiff, on the plea that being a consent decree, it could not be challenged. It is denied that; any time limit for performance of the agreement to sell or the compromise decree had been fixed, the decree passed is in the nature of a preliminary decree or that the plaintiff was not ready and willing to perform his obligations under the decree. It is asserted that the plaintiff did offer the sum payable to the defendant but he was put off, for which he had to file an execution petition (Ex.36/96). It is asserted that the defendant has no right to challenge the consent decree and the application be dismissed.
(6) I have heard learned counsel for the parties. The points for consideration are : 1. Whether the application is not maintainable for the reason that ; a) the decree dated 9 November 1990 being a consent decree the defendant has no right to challenge the same. b) no time limit was fixed either in the compromise application or in the decree for payment of a sum of Rs. 1,35,600.00 by the plaintiff to the defendant and 2) Whether the plaintiff had been ready and willing and did offer to perform his obligation under the compromise and the decree passed? Section 28 of the Act, in sofaras it is relevant for the present application, 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 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 Lesser 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, (2) ............ Though on a bare reading of the section it would appear that by its terms it does not apply to a decree where no time limit is fixed or no time is fixed/granted for payment of money, but it is well settled that the principles of the section would apply even to cases in which no time for payment of money has been specifically fixed in the decree. In such a case, a decree holder cannot claim that he is at liberty to claim performance at any time at his whims or pleasure. In the absence of a specific time fixed for performance, obligation under the contract has to be performed within a reasonable time. It is equally well settled that a decree in suit for specific performance is in the nature of a preliminary decree and the original Court keeps control over the action and it has full power to make any just and necessary orders therein. (See Abdul Shuker Sahib v. Abdul Rahiman Sahib Air 1923 Mad. 284. It has been further held that a decree for specific performance operates in favor of both parties and the passing of the decree for specific performance does not terminate the suit. In H.I. Trust v. Haridas Mundhra , it was held that the fact that the decree did not fix time for completing the contract did not prevent either party from demanding performance from the 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 abrogate that liberty in any way, and if the party from whom the 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. In the light of the above legal position, the decree passed on 9 November 1990 even though on consent of the parties does not cease to be a preliminary decree and the Court retains the seisin over it. The plea that as no time limit for payment of Rs. 1,35,600 by the plaintiff was fixed by the Court in the decree does not mean that he can keep the issue hanging. The decree passed being in the nature of a preliminary decree, the proceedings in the suit are deemed to be pending and the Court is competent to pass all just and necessary orders. thereforee, the present application under Section 28 of the Act cannot be said to be not maintainable. This disposes of the first point. On the second point there is nothing on record to show - much less to support plaintiff's plea, even prima facie, that the plaintiff had at any point of time, between 1990 to 1996, offered to pay the aforenoted amount to the defendant but was put off or that he had the amount in its bank account or otherwise means to pay the said amount. No document has been placed on record in support of the plaintiffs contention that he was ready and willing to perform his part of the obligation. Even till date, after the expiry of more than five years, no payment or deposit has been made by the plaintiff to show his bonafides. I am satisfied that all this while the plaintiff was not ready and willing to perform his part of the obligation under the consent decree.
(7) Mr. Lonial, learned counsel for the plaintiff vehemently submitted that since no time had been fixed in the decree for making the payment to the defendant, the plaintiff could make the payment within a period of 12 years, the limitation prescribed for getting the decree executed and in any case the plaintiff had filed execution (Ex.36/96), within time. In the light of the judgment in H.I. Trust's case (Supra), I am unable to pursuade myself to accept the contention of the learned counsel. As observed by the Supreme Court, even though, a decree does not fix time for completing the contract, the performance of the contract has to be demanded within a reasonable time. As noticed above, in the present case, the plaintiff waited for more than five years before initiating the execution proceedings for which delay he has not furnished any Explanationn, nor deposited the money to show his anxiety to discharge his obligations. As noted above, the plaintiff has failed to show his readiness and willingness to perform his part of the contract within a reasonable time after the consent decree. In any event, the period of over five years cannot be said to be a reasonable time for showing his readiness and willingness by the plaintiff to perform his part of the contract.
(8) It was next contended by Mr. Lonial that the Court has power to condone delay and extend time, grant leave to the plaintiff now to deposit the sale consideration. It is true that in an appropriate case, the Court, in control of the suit for specific performance, is competent to extend the time for deposit, but the plaintiff/decree holder herein has not placed on record any fact or circumstance entitling him to such a relief. It is pertinent to note that no such prayer has been made by him in his reply to the present application nor any justification in support pleaded. It was only during the course of arguments that the learned counsel urged the point as a proposition in law. Having regard to these facts. I do not find any justification to grant further time to the plaintiff to deposit the sale consideration.
(9) For the foregoing reasons, I am constrained to allow the application and hold that the agreement to sell dated 16 May 1984 stands rescinded.
(10) There will be no order as to costs.