Allahabad HC Sets Aside Extension of Time After 20-Year Delay in Specific Performance Execution

The Allahabad High Court held that a plaintiff's wilful neglect in depositing balance sale consideration for over two decades cannot be rescued by a belated extension-of-time application under Section 28 of the Specific Relief Act 1963.

Justice Rohit Ranjan Agarwal, sitting singly at the High Court of Judicature at Allahabad, allowed a petition under Article 227 filed by the defendant in a specific performance suit, setting aside orders of both the executing court and the revisional court that had permitted the plaintiff to deposit balance sale consideration after a delay of more than twenty years. The court found that the plaintiff had shown wilful negligence at every stage—waiting nine years to initiate execution proceedings, failing to press an earlier extension application, never contesting the second appeal, and then moving a fresh extension application more than six years after that second appeal was dismissed. Balancing the equities squarely in favour of the defendant, the court held that the lower courts had wrongly rejected the defendant's application under Section 28 of the Specific Relief Act 1963 for rescission of the decree.

The Agreement, the Suit, and the Chain of Decrees

On 3 July 1991, the defendant Duliram Maurya entered into an agreement to sell land in dispute with the plaintiff Nandram for a total consideration of Rs. 25,000. On the same day, Rs. 13,000 was paid by the plaintiff, with the balance Rs. 12,000 to be paid at the time of execution of the sale-deed.

The plaintiff instituted Original Suit No. 109 of 1993 for specific performance. The trial court dismissed the suit on 18 August 1998, holding that no transaction for execution of a sale-deed had taken place and that the disputed agreement was, in substance, a device to disguise a loan taken by the defendant.

The plaintiff appealed. Civil Appeal No. 101 of 1998 was allowed on 22 November 2003, decreeing the suit. The appellate court directed the defendant to execute the sale-deed within two months and directed the plaintiff to deposit the balance sale consideration of Rs. 12,000 within one month from the date of the decree.

The defendant filed Second Appeal No. 235 of 2004 before the Allahabad High Court. No interim order was granted in that second appeal. The second appeal was dismissed on 23 September 2019—fifteen years after it was filed.

The Execution Proceedings and the Belated Applications

Despite being directed to deposit the balance amount within one month of the 2003 decree, the plaintiff took no steps to deposit the sum and filed no application for extension of time in the immediate aftermath of the decree. It was only on 6 August 2012—nearly nine years after the decree—that the plaintiff initiated Execution Case No. 1 of 2012. In those proceedings, an application for extension of time was moved, but it was never allowed by the executing court and was left pending without being pressed by the plaintiff.

The plaintiff also never appeared before the High Court during the pendency of the second appeal and did not contest those proceedings at any stage.

After the second appeal was dismissed on 23 September 2019, the defendant moved Application 26-C under Section 28 of the Specific Relief Act 1963, seeking to drop the execution proceedings and rescind the contract on account of the plaintiff's failure to deposit the balance amount. The plaintiff responded by filing objections and simultaneously moved Application 31-C and Application 55-C on 17 November 2025—more than six years after the dismissal of the second appeal—seeking extension of time to deposit the balance sale consideration and condonation of delay.

By order dated 23 December 2025, the Additional Civil Judge (Junior Division), Court No. 3, Budaun rejected the defendant's Application 26-C and allowed the plaintiff's Applications 31-C and 55-C, permitting the deposit at a cost of Rs. 1,000 payable to the defendant. The defendant challenged this in Civil Revision No. 3 of 2026, which was dismissed on 6 April 2026. The present writ petition under Article 227 followed.

The Legal Dispute Under Section 28

Section 28 of the Specific Relief Act 1963 governs rescission of contracts for the sale or lease of immovable property where specific performance has been decreed. Sub-section (1) enables the vendor or lessor to apply for rescission where the purchaser fails to pay the purchase money within the period allowed by the decree or any further period the court may allow. Sub-section (3) correspondingly allows the purchaser, if payment is made within the requisite period, to seek further relief including execution of a conveyance. The court retains discretion throughout and does not become functus officio after the decree is passed.

The core question before the High Court was whether, in the attending facts, the executing court could have permitted the plaintiff to deposit the balance sale consideration more than twenty years after the suit was decreed, while simultaneously rejecting the defendant's rescission application.

How the Court Reasoned

Justice Agarwal surveyed a line of Supreme Court decisions to frame the applicable principles before turning to the facts.

From Chanda v. Rattni, 2007 (14) SCC 26, the court extracted the settled position that a decree for specific performance is a preliminary decree, that the power under Section 28 is discretionary, and that the court cannot ordinarily annul the decree once passed but retains that power. Balbir Singh & Another v. Baldev Singh (Dead) Through His Legal Representatives & Others, 2025 (3) SCC 543 reiterated the same principles.

From Sardar Mohar Singh v. Mangilal, (1997) 9 SCC 217 and Bhupinder Kumar v. Angrej Singh, (2009) 8 SCC 766, the court noted that the executing court does not become functus officio after the grant of the decree and retains jurisdiction to extend time or rescind.

From Ramankutty Guptan v. Avara, (1994) 2 SCC 642, the court drew the principle—rooted in Section 37 of the Code of Civil Procedure—that an application under Section 28 is maintainable in the court of first instance even when the decree was passed by the appellate court, since an appeal is a continuation of the suit and the trial court's decree merges into that of the appellate court.

From Ram Lal v. Jarnail Singh, 2025 SCC Online SC 584, the court extracted the Supreme Court's summary that the non-payment of balance consideration within the time fixed by the trial court does not amount to abandonment, but that “there must be an element of willful negligence on the part of the plaintiff before a court proceeds to invoke Section 28 of the Act.” The Supreme Court in that case had also observed that the appellate court owes a duty under Order XX Rule 12A of the Code of Civil Procedure to specify the time within which payment shall be made, and that in deciding whether to permit a belated deposit the court must weigh the bona fides of the decree holder, the cause for delay, the length of delay, and the equities created in favour of the judgment debtor.

From Anand Narayan Shukla v. Jagat Dhari, 2026 (2) ARC 481, the court drew the consolidated guidelines under Section 28, including the principle that if the conduct of the decree holder logically shows no intention to complete his part of the contract and there is wilful negligence, the court may rescind.

The court also considered Habban Shah v. Sheruddin, MANU/SC/0441/2026, which established that even where the judgment debtor has not filed a formal Section 28 application for rescission, this does not prevent the court from treating the contract as rescinded for non-compliance, since filing such an application is optional rather than mandatory.

Applying these principles, the court found the plaintiff's conduct at every stage to be one of deliberate inaction. The decree of 2003 required deposit within one month. No deposit was made and no timely application was filed. Execution proceedings came only nine years later in 2012. The plaintiff never contested the second appeal, which ran for fifteen years without any participation from him. The 2012 extension application was left to lapse without any follow-up. After the second appeal was finally dismissed in September 2019, the plaintiff again waited more than six years before moving a fresh extension application in November 2025.

The court rejected the plaintiff's argument that the doctrine of merger meant the relevant period should be calculated from the High Court's judgment of 23 September 2019 rather than from the 2003 appellate decree. While accepting that the 2003 decree did merge into the High Court's 2019 judgment, the court held that this did not assist the plaintiff because the second application for extension of time was moved only on 17 November 2025—more than six years after the merged decree—and the first application filed in 2012 had never been pressed. The merger doctrine addressed the starting point of computation, not the plaintiff's conduct.

The court also distinguished the facts of Anand Narayan Shukla from the present case. In that case the suit was decreed in March 2017, execution proceedings were initiated the same year, and the extended deposit was made in 2020—a delay measured in years rather than decades. Here, the timeline stretched from 2003 to 2025, with the plaintiff passive throughout.

The court concluded that both the executing court and the revisional court had failed to balance the equities and had wrongly recorded that the plaintiff was not at fault due to the pendency of the second appeal. The orders were, in the court's view, patently illegal.

Outcome

Justice Agarwal allowed the writ petition and set aside both impugned orders: the order dated 23 December 2025 passed by the Additional Civil Judge (Junior Division), Court No. 3, Budaun in Execution Case No. 1 of 2012, and the order dated 6 April 2026 passed by the Additional District Judge/Special Judge (POCSO Act), Court No. 3, Budaun in Civil Revision No. 3 of 2026.

The defendant petitioner Duliram Maurya was directed to return the advance amount received by him under the agreement to sale dated 3 July 1991 to the plaintiff respondent Nandram within one month from 6 August 2026, together with interest at 6% per annum calculated from the date of receipt of the advance.