For proper appreciation, Section 28 is reproduced hereunder:
“28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed –
(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ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether as the justice of the case may require.
(2) Where a contract is rescinded under sub-section (1), the Court
(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.
(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the Court.”
Analysis
From the perusal of Section 28, it could be seen that the same was intended to give an option to the vendor or lessor to apply before the Court to have the contract rescinded if the decree holder / purchaser/ lessee does not pay the purchase money or other sum which the Court has ordered him to pay within the period allowed by the decree or such further period as the Court may allow.
Sub-Rule (3) further shows that the purchaser or lessee is also entitled to move for an order for such other further relief including the execution of proper conveyance or lease by the vendor or lessor, the delivery of possession or partition etc., of the property, if the decree holder/ purchaser / lessee pays the purchase money or other sum, which he is ordered to pay under the decree within the period referred to sub-section (1).
Thus, Section 28 can be invoked by the judgment debtor in a decree for specific performance only when the decree holder/ purchaser failed to pay the money within the time stipulated in the decree. Equally, the decree holder or lessee can also invoke section 28 seeking for further relief as contemplated under sub-rule (3) if he pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to therein.
Therefore, on a combined reading of sub-sections (1) and (3), what is made clear in unambiguous terms is that the Court cannot go beyond the decree and rescind the same on any other ground other than the one contemplated under sub-section (1) of Section 28. To put it in simple terms, the vendor/judgment debtor is entitled to file an application under Section 28 only when the purchaser/decree holder failed to comply with the terms of the decree within the stipulated time. Thus, the decree cannot be rescinded on any other ground.
In other words, the grounds raised must be in consonance with the decree and not otherwise.