Madras High Court· 01 September 2026
Does a Court become functus officio after passing a decree for specific performance of a contract?
RAJESWARI v. SAMPOORNAM
SA.2186/2004 · 2026:MHC:3597 · S.A. No.2186 of 2004
Coram: Justice R.Sakthivel
Answer
No. A decree for specific performance is in the nature of a preliminary decree, and until the sale deed is executed in execution of the decree, the Court that passed it retains its jurisdiction and does not become functus officio. The contract of sale is treated as subsisting even after the decree, and Section 28 of the Specific Relief Act empowers the Court, in its discretion, either to rescind the contract or to extend the time for depositing the balance sale consideration.
Headnote
Specific Relief Act, 1963 — s.28 — Code of Civil Procedure, 1908 — Order XX Rule 12A, s.100 — Limitation Act, 1963 — Article 137 — Decree for specific performance — Rescission and extension of time — Deposit within reasonable time — Finality of the rescission order —
Specific Relief Act, 1963 — s.28 — Court not functus officio after a decree for specific performance —
Held: A decree for specific performance is in the nature of a preliminary decree, and until the sale deed is executed in execution of the decree, the Court that passed it does not lose its jurisdiction nor become functus officio. The contract of sale is treated as a subsisting contract even after the decree, and Section 28 empowers the Court, in its discretion, either to rescind the contract or to extend the time to deposit the balance sale consideration. (¶18)
Code of Civil Procedure, 1908 — Order XX Rule 12A — Specific Relief Act, 1963 — s.28 — Deposit within a reasonable time where the decree fixes none —
Held further: Where a decree for specific performance omits to specify the period for deposit as required by Order XX Rule 12A, the deposit must nonetheless be made within a reasonable time, and an unexplained delay disentitles the decree-holder. A delay of about four years, without any satisfactory explanation, cannot be treated as reasonable and justifies rescission of the decree under Section 28. (¶18, 20)
Specific Relief Act, 1963 — s.28 — Limitation Act, 1963 — Article 137 — Finality of the rescission order — collateral challenge barred —
Held further: Once an order rescinding the decree under Section 28 has attained finality, the review application and the civil revision petition against it having been dismissed, it cannot be reopened or reagitated in a subsequent suit. A plea that the Section 28 application was barred by Article 137 of the Limitation Act ought to have been raised in those proceedings and cannot be canvassed collaterally after the order has become final. (¶20, 21)
Specific Relief Act, 1963 — s.28 — Effect of rescission — vendors competent to convey —
Held further: On the rescission attaining finality, the ex-parte decree for specific performance was rendered unenforceable, leaving no subsisting decree in favour of the agreement-holders; the vendors were therefore competent to validly convey their right, title and interest, and the intervening sale, though pendente lite, cannot be termed invalid. Second Appeal dismissed and the concurrent decrees confirmed. (¶23, 26)
In the Court's own words
Paragraph 18The Ex-parte Decree in O.S. No.5500 of 1983 was clearly not drafted in accordance with the above provision. The lacunae was that no time frame was fixed for deposit of the balance sale consideration. Nonetheless, though the Ex-parte Decree was silent as to the period within which the balance sale consideration was to be deposited, first defendant and her husband ought to have made the deposit within a reasonable period. In a Suit for specific performance, even after passing of a decree, the contract of sale is treated as a subsisting contract. The plaintiff shall be ready and willing to perform their part of the contract as per the decree. Any failure thereof, the defendant can file application under Section 28 of the Specific Relief Act, 1963 seeking recission of contract and the Court is at discretion to either rescind or extend time based on facts and circumstances. In this regard, it is apposite to cite here the Judgment of Hon'ble Supreme Court in Hungerford Investment Trust Ltd. -vs- Haridas Mundhra, reported in (1972) 3 SCC 684 [Coram Strength =2], wherein it was held as hereunder: "22. It is settled by a long course of decisions of the Indian High Courts that the Court which passes a decree for specific performance retains control over the decree even after the decree has been passed. In Mahommadalli Sahib v. Abdul Khadir Saheb, [(1930) 59 MLJ 351] it was held that the Court which passes a decree for specific performance has the power to extend the time fixed in the decree for the reason that Court retains control over the decree, that the contract between the parties is not extinguished by the passing of a decree for specific performance and that the contract subsists notwithstanding the passing of the decree. In Pearisundari Dassee v. Hari Charan Mozumdar Chowdhry, [ILR (1888) 15 Cal 211] the Calcutta High Court said that the Court retains control over the proceedings even after a decree for specific performance has been passed, that the decree passed in a suit for specific performance is not a final decree and that the suit must be deemed to be pending even after the decree. The same view was taken in Someshwar Dayal v. Widow of Lalman Shah [AIR 1958 All 488] . In Anandilal Poddar v. Gunendra Kr. Roy[AIR 1966 Cal 107] Ray, J., speaking for the Court, said that the court retains control over the matter even after passing a decree for specific performance and that virtually, the decree is in the nature of a preliminary one. In Tribeni Tewary v. Ramratan Nonia [AIR 1959 Pat 460] it was held that the Court retains rescission of the case notwithstanding the fact that a decree for specific performance has been passed and that the decree is really in the nature of a preliminary decree." 18.1.Further, the Hon'ble Supreme Court in Sardar Mohar Singh -vs- Mangilal alias Mangtya, reported in (1997) 9 SCC 217 has held as hereunder: "4. From the language of sub-section (1) of Section 28, it could be seen that the court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio. The very fact that Section 28 itself gives power to grant order of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial court retains its power and jurisdiction to deal with the decree of specific performance. It would also be clear that the court has power to enlarge the time in favour of the judgment-debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment-debtor and rejected. In other words, the court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. …" 18.2.Further, Hon'ble Supreme Court in Bhupinder Kumar -vs- Angrej Singh, reported in (2009) 8 SCC 766 [Coram Strength =2], after referring to various decisions, held as hereunder: "21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance. In other words, when the court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree.
Acts & Sections
s.28 Specific Relief Act, 1963s.28(1) Specific Relief Act, 1963Order XX Rule 12A Code of Civil Procedure, 1908s.100 Code of Civil Procedure, 1908s.37 Code of Civil Procedure, 1908Article 137 Limitation Act, 1963One judgment a day. That's the whole habit.
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