SATHAMRAJU SURYANARAYANA Vs. THUMMETI SYDAIAH
LAWS(APH)-1971-12-31
HIGH COURT OF ANDHRA PRADESH
Decided on December 17,1971

Sathamraju Suryanarayana Appellant
VERSUS
Thummeti Sydaiah Respondents

JUDGEMENT

MADHAVA REDDY,J. - (1.) In O.S. No. 64 of 1957 on the file of the District Munsif, Gurazala, the parties arrive at a compromise and a the parties arrived at a compromise and a decree in terms of the compromise was passed on 24th July, 1958, in the following terms : "This Court doth order and decree that the defendant do pay to the plaintiff the sum of Rs. 1,390 in full satisfaction of the suit claim and costs within two months form this date i.e., before 24th September, 1958 and obtain a receipt for the same ; in default of which after the said period of two months plaintiff shall realise the same from the defendant through Court in execution with interest at 5 1/2 per cent. per annum that on payment of said amount plaintiff do execute a registered sale deed for the property as per suit note and do also give security of Ac. 2-50 cents on the western side of D.No. 393/3 and 394 A, B, C, pertaining to the village of Thumurukodu, and belonging to the plaintiff and that in case the sale by plaintiff and that in case the sale by plaintiff do stand cancelled in litigation defendant do recover the sale consideration out of the Ac. 2-50 cents of the secured property and that each of the above said clause do stand as consideration for the other."
(2.) The plaintiff-decree-holder to whom the respondent herein had to pay a sum of Rs. 1,390 having failed to pay the same applied for execution of the decree ; but having failed to realise the amount filed an unnumbered interlocutory application of 1970 in O.S. No. 64 of 1957 on the file of the District Munsif, Gurazala under section 28 of the Specific Relief Act, 1963 to rescind the contract, cancel the decree in O.S. No. 64 of 1957 and direct the respondent to ut him in possession of the plaint schedule property and also to pay mesne profits from the date of suit till the date of delivery of possession. The learned District Munsif by his order dated 21st August, 1970, now under revision, held that the petition is not maintainable and that the proper remedy for the petitioner is to file a separate suit for determination of the rights of each party. The Court below rejected the petition on the ground that the decree in O.S. No. 64 of 1957 is not a suit for specific performance but a suit for recovery of money and under the terms of the decree, the remedy of the petitioner-decree-holder was to recover the amount by way of execution and on failure to realise the amount by way of execution, his remedy was by way of a separate suit for determination of such rights as he may be entitled to.
(3.) While it is contended by Mr. P.L.N. Sarma, learned Counsel for the petitioner that section 28 of the Specific Relief Act applies to the facts of the case, Sri Chenna Kesava Rao for respondent argues that section 28 of the Specific Relief act applies to the facts of the case, Sri Chenna Kesava Rao for respondent argues that section 28 of the Act applies only to a case where a decree is passed in a suit for specific performance. Section 28(1) of the Act which is relevant for our present purpose reads as follows:- "28(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 contract rescinded and on such application the Court may, by order, rescind the contract either so far as regard the party in default or altogether, as the justice of the case may require.";


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