Madras High Court· 01 September 2026

Once an order rescinding a decree under Section 28 of the Specific Relief Act has attained finality, can it be reopened, and can a plea of limitation against the rescission application be raised in a later suit?

RAJESWARI v. SAMPOORNAM

SA.2186/2004 · 2026:MHC:3597 · S.A. No.2186 of 2004
Coram: Justice R.Sakthivel

🔖 Save this judgment 🔔 Follow s.28 Specific Relief Act, 1963 📬 Get today's judgments

View the original judgment PDFFree to read. To download it — or the LexStreak typeset copy with the headnote and Points of Law — create an account; downloads are part of the Pro plan.

Answer

No. Once the rescission order has attained finality, the review application and 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.

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 20On the facts of this case, the respondent has not proved her readiness and willingness to perform her part of the contract within a reasonable time after the decree. Though the decree in the present case has not specified any time to deposit the amount, it was the duty of the plaintiff to have performed her part within a reasonable time. The time taken, viz, 3 years and odd cannot be said to be reasonable by any standard. Hence, the contract has to be rescinded as prayed for by the petitioner. The Court below is wrong in dismissing the application filed by the petitioner. The application filed under S. 28 of the Specific Relief Act will have to be allowed." 20. On the strength on the above case laws, one can easily come to the conclusion that though the aforesaid Ex-parte Decree did not stipulate any time period for depositing the balance sale consideration, the first defendant herein and her husband ought to have deposited the said amount within a reasonable time. This Court shall not get into the factual question of whether the deposit made by them was within a reasonable time frame or not, for it has already been decided in I.A. No.445 of 1991 against the first defendant herein and her husband and consequently, the aforesaid three Sale Agreements were rescinded. It is to be noted that, after the rescindment, the first defendant and her husband filed a Review Application seeking review of the Order passed in I.A. No.445 of 1991, and the same was also dismissed. It was further submitted that a Civil Revision Petition before this Court was filed on the side of defendants 1 to 9 herein, which was also dismissed at the S.R. stage itself on July 11, 1997. Hence, the Order passed in I.A. No.445 of 1991 under Section 28 of the Specific Relief Act, 1963 attained finality. Consequently, the aforesaid three Sale Agreements were rescinded and the Ex-parte Decree passed in O.S. No.5500 of 1983 was rendered unenforceable. Therefore, the defendants cannot reopen or reagitate the matter once again in the present Suit.

Paragraph 21Mr. T.M.Hariharan, the learned Counsel appearing for the appellants who are defendants 1 to 9 in the Original Suit, would rely on three case laws as stated above and contend that Article 137 of the Limitation Act, 1963 is applicable to an application filed under Section 28 as well. In this regard, this Court is of the view that the question of limitation ought to have been raised in the proceedings under Section 28 of the Specific Relief Act, 1963. The Order passed in the Interlocutory Application in I.A. No.445 of 1991 reached finality and the question of limitation cannot be raised now in this case. Once the Order of rescindment has reached finality, it would not be appropriate for this Court to get into the merits of the same. The case laws relied upon by him would not come to his aid in this case.

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, 1963

One judgment a day. That's the whole habit.

Read the full text of RAJESWARI v. SAMPOORNAM — and get the Supreme Court's output as a five-minute daily read, with plain-language headnotes and the questions each judgment settles.

Create my free account

Free forever plan · 30 seconds · data stays in India

Open the full judgment →

Also decided in this judgment

Does a Court become functus officio after passing a decree for specific performance of a contract?Where a decree for specific performance fixes no period for deposit as required by Order XX Rule 12A of the Code of Civil Procedure, within what time must the deposit be made?What is the effect of the rescission of an ex-parte decree for specific performance on the competence of the vendors to convey the property?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Madras High Court. Corrections