(Querist) 07 October 2019
This query is : Resolved
performance suit to executive sale was decreed in plaints favour with a direction to deposit balance consideration within 2 months into court and defendants are directed to execute sale deed within 3 months. Plaint not deposited as directed and prayed for extension of time before trial court within the time u/s 148 of cpc but it was dismissed saying that “court can not entitled to enlarge time beyond time already granted”. Aggrieved by it plaint carried the matter to high court in CRP, wherein high court granted 10 days time to deposit the amount at the time of notice to others. Again plaint could not comply since he underwent open heart surgery. There by application was dismissed during the admission time in 2002. But in 2011, when defendants challenge to lower court decree before high court in A.S was dismissed, plaintiff again moved an I.A. for restoration & extension of time to deposit balance sale consideration in the same CRP before high court which is pending for consideration. There was no application for rescission of the contract by defendants before trail court. Now my question is :- 1. Now, can I file E.P. before lower court since it is within 12 years limitation? Non compliance of payment of balance sale consideration will be a impediment for E.P? 2. Decree under specific performance act u/s sec. 28 is not extinguished until it is executed in E.P or rescinded by trail court and till such time trail court retains the power and trail court can grant extension of time to deposit balance sale consideration in view of Apex court citation in Sardar Mohar singh vs. mangilal and also approved recently by apex court judgment in surendra pal soni vs sohan lal on 23-07-2019. Using this judgment now I want to move application before trail court for extension of time. But on the same subject an I.A already field by me is pending before High Court as mentioned above. Under these circumstances trail court will allow my application to deposit the money? Or is there any other way to proceed with the matter? Experts in this area kindly advise me how to deal with this situation.