Gauhati High Court
Page No.# 1/8 vs On The Death Of Md. Alim Uddin on 1 April, 2026
Page No.# 1/8
GAHC010152972022
2026:GAU-AS:4955
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/90/2022
MUSSTT. NURIJA BEGUM MAZUMDER
W/O AFJAL HUSSAIN MAZUMDER, R/O SUNDARI PART I, P.O.-SUNDARI
B.O., PIN-788099, P.S.-KACHUDARAM, DIST-CACHAR, ASSAM
VERSUS
ON THE DEATH OF MD. ALIM UDDIN, HIS LEGAL HEIRS NAMELY
S/O LATE SIKANDAR ALI, DIST-CACHAR, ASSAM
1.1:MUSSTT. RINA BEGUM MAZUMDER
W/O LATE ALIM UDDIN
R/O SUNDARI PART I
P.O.-SUNDARI B.O.
PIN-788116
P.S.-KACHUDARAM
DIST-CACHAR
ASSAM.
1.2:SAHADAT AHMED MAZUMDER
S/O LATE ALIM UDDIN
R/O SUNDARI PART I
P.O.-SUNDARI B.O.
PIN-788116
P.S.-KACHUDARAM
DIST-CACHAR
ASSAM.
BEING MINOR
REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN MUSSTT.
RINA BEGUM MAZUMDER.
1.3:FARUK AHMED MAZUMDER
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S/O LATE ALIM UDDIN
R/O SUNDARI PART I
P.O.-SUNDARI B.O
PIN-788116
P.S.-KACHUDARAM
DIST-CACHAR
ASSAM.
BEING MINOR
REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN MUSSTT.
RINA BEGUM MAZUMDER
Advocate for the Petitioner : MR. S D PURKAYASTHA, MS. S PHUKAN
Advocate for the Respondent : ,
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
ORDER
01.04.2026
Heard Mr. S.D. Purkayastha, learned counsel for the petitioner.
2. In this petition under Section 115 of the Code of Civil Procedure, 1908, the
petitioner has challenged the order dated 07.07.2022, passed by the learned Munsiff
No.1, Cachar at Silchar (hereinafter referred to as the Trial Court) in Title Suit
No.214/2017. It is to be noted here that vide impugned order dated 07.07.2022,
learned Trial Court has dismissed the petition filed by the petitioner for condonation of
the delay in depositing the balance sale consideration and for allowing her to deposit
the same.
3. Mr. Purkayastha, learned counsel for the petitioner submits that the petitioner
herein has instituted one title suit, being Title Suit No.214/2017 for specific
performance of the contract dated 06.09.2016, for sale of the suit land. He submits
that the learned Trial Court, after trial, had decreed the suit of the petitioner with the
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following direction:-
(a) The plaintiff is entitled to specific performance of the contract dated 06.09.2016,
for sale of the suit land subject to payment of remaining consideration of money
of Rs.10,000/- to the defendant within the next 75 days from today and the
defendant shall execute and register sale deed in respect of the suit land, in
favour of the plaintiff, on receipt of the above mentioned balance amount.
(b) In the event of failure of the defendant to execute and register the sale deed by
receiving the amount of remaining consideration of Rs.10,000/- within the above
period, the plaintiff shall be entitled to get the sale deed executed and
registered and to delivery of khas possession of the decretal land through the
process of the Court by depositing the said amount in the Court.
(c) Cost of the suit.
4. Mr. Purkayastha further submits that though the judgment and decree was
passed on 29.08.2018, the petitioner herein did not know details of the same and she
also could not meet her engaged counsel to know about details of the judgment and
to take necessary steps due to various domestic problems being a housewife and her
husband also stayed outside for his occupation and in the meantime, the 75 days
stipulated in the judgment and decree dated 29.08.2018 expired on 12.11.2018. And
thereafter also, the petitioner herein could not contact with her engaged counsel and
she thereafter conceived in the month of July, 2019 and due to various complications,
her movement got restricted
4.1 Mr. Purkayastha also submits that ultimately on 29.05.2020, she gave birth of a
female child and under the said circumstances, she could not contact with her
engaged counsel for doing the needful and only in the month of March, 2021, she
could met her counsel and as per his advise she applied for certified copy of the
judgment and decree dated 29.08.2018, and the same was delivered to her on
24.03.2021 and thereafter, she could learn about the details of the judgment from her
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engaged counsel that she was required to deposit the balance consideration price of
Rs.10,000/- only within 75 days and therefore, the petitioner has filed a petition
supported by affidavit on 09.04.2021, before the learned Trial Court in the Title Suit
No.214/2017 for allowing her to deposit the balance sale consideration after
condoning the delay, but the said petition was dismissed vide impugned order dated
07.07.2022.
4.2 Mr. Purkayastha, referring to Section 28(1) of the Specific Relief Act, 1963,
submits that there was no legal impediment to allow the prayer of the petitioner to
deposit the balance sale consideration and further observed that there is no material
to show that the petitioner was willing and ready to perform her part nor had she
tendered or deposited the balance consideration as per the terms of the decree are
unnecessarily made for these were not issue to be decided b the learned Trial Court
and in view of the provision under Section 28(1) of the Specific Relief Act, the
impugned order dated 07.07.2022 is illegal and arbitrary and under such
circumstances, Mr. Purkayastha has contended to allow the application. Mr.
Purkayastha, lastly submits that the petitioner herein also ready pay either interest or
compensation upon the amount due.
4.3 To bolster his submission, Mr. Purkayastha has referred two decisions of Hon’ble
Supreme Court, one in the case of Sardar Mohar Singh through Power of
Attorney Holder, Manjit Singh v. Mangilal @ Mangtya, reported in (1997) 9
SCC 217, and the other in the case of Ram Lal v. Jarnail Singh (Now
Deceased) through its LRs & Ors., reported in 2025 0 Supreme(SC) 433.
5. It is to be noted here that though service was effected upon the respondent, he
failed to turn up and contest this proceeding.
6. Having heard the submission of Mr. Purkayastha, learned counsel for the
petitioner, this Court has carefully gone through the petition and the documents
placed on record and also gone through the relevant provision i.e. Section 28(1) of the
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Specific Relief Act and also the decisions referred by him.
7. It is to be noted here that Section 28(1) of the Specific Relief Act provides that
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.
8. It is also to be noted here that while interpreting the provision of Section 28(1)
of the Specific Relief Act in the case of Sardar Mohar Singh (supra), Hon’ble
Supreme Court in paragraph No.4 held as under:-
“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.
It is true that the respondent has not given satisfactory
explanation of every day’s delay. It is not, unlike Section 5
Page No.# 6/8of the Limitation Act, an application for condonation of
delay. It is one for extension of time. Under these
circumstances, the executing court as well as the High Court
had exercised discretion and extended the time to comply with
the conditional decree. Accordingly, we do not find any valid
and justifiable reason to interfere with the order passed by
the High Court confirming the order of the executing court
when in particular; the High Court has further enhanced a sum
of Rs 16,000 to compensate the petitioner for loss of
enjoyment of the money. The said amount is given to the
respondent in a sum of Rs 16,000 rightly for the reason that
parties contracted for non-performance of the contract. They
quantified the damages at Rs 2000 for 8 years. The Court has
given Rs 16,000 obviously in terms of the contract.”
9. Further, in the case of Ram Lal (supra), Hon’ble Supreme Court, referring to
its earlier decision in Ramankutty Guptan v. Avara, reported in (1994) 2 SCC
642, held that in the case of Ramankutty Guptan (supra), this Court while holding
that the application for extension of time for payment of balance amount of
consideration can be filed in the Court of the first instance as well as in the appellate
Court, and it has also observed that “it is to be seen that the procedure is hand-maid
for justice and unless the procedure touches upon jurisdictional issue, it should be
moulded to sub-serve substantial justice. Therefore, technicalities would not stand in
the way to sub-serve substantive justice.” Thereafter, Hon’ble Supreme Court has
observed that the respondent is entitled to simple interest upon the balance sale
consideration at the rate of 9% per annum. It is also to be noted here that in the case
of Sardar Mohar Singh (supra), Hon’ble Supreme Court has directed to pay
compensation of a sum of Rs.16,000/- for loss of enjoyment of the money.
10. In the instant case, the judgment and decree was passed on 29.08.2018, and
the time granted for depositing the remaining amount of sale consideration of
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Rs.10,000/- within 75 days and the said period elapsed on 12.11.2018, but the
petitioner has filed the petition for extension of time on 09.04.2021. There is delay of
517 days. However, the learned Trial Court, considering the ground assigned found
that still there is unexplained delay of a period of one year and the petitioner had
failed to show any justified reason to demonstrate that she was ready and willing to
deposit the balance consideration amount.
11. This finding of the learned trial court, to the considered opinion of this court, is
not sustainable, while it is well settled in the case of Sardar Mohar Singh (supra),
that the petition was filed under Section 28(1) of the Specific Relief Act cannot treated at par
with an application under Section 5 of the Limitation Act for condonation of delay. It is also
well settled that the court has the discretion to extend time for compliance of the
conditional decree as mentioned in the decree for specific performance. It is further
well settled that in the case of Ramankutty Guptan (supra), the procedure is hand-
maid for justice and unless the procedure touches upon jurisdictional issue, the court
can mould the relief to sub-serve substantial justice and the technicalities would not
stand in the way to sub-serve substantive justice.
12. Here in this case, from a perusal of the impugned order, it appears that the
learned trial court had treated the petition under Section 28(1) of the Specific Relief Act, to
extend time for compliance of the conditional decree for specific performance, at par
with an application under Section 5 of the Limitation Act for condonation of delay, and
rejected the same for unexplained delay of a period of one year. Further, the other
reason assigned by the learned trial court that the petitioner has failed to show any
justified reason to demonstrate that she was ready and willing to deposit the balance
consideration amount also appears to be not applicable at post judgment stage,
though the same was a vital issue while deciding the suit. A mere technicality, which
does not touch upon jurisdictional issue, cannot stand in the way of sub-serve
substantial justice, as held in the case of Ram Lal (supra), specially in paragraph
No.54. Mr. Purkayastha has rightly pointed this out at the time of hearing and there
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appears to be substance in the same.
13. Under the above facts and circumstances, this court is unable to derive
satisfaction about exercising the discretion so granted by Sub-section (1) of Section
28, by the learned trial court in a desired manner warranting interference of this court.
14. Thus, having carefully gone through the petition, which is annexed with the
present petition at page No.20 and the affidavit and the annexure appended
therewith, this Court is of the view that the petitioner herein has succeeded in
establishing a case in her favour.
15. In the result, this court finds sufficient merit in this petition and accordingly the
same stands allowed. The impugned order, dated 07.07.2022, is accordingly set aside
and quashed. The petitioner herein is directed to deposit the amount of Rs.10,000/-
with 9% interest from the date which it becomes due i.e. 12.11.2018, till such amount
being deposited before the learned Trial Court.
16. In terms of above, this petition stands disposed of.
Sd/- Robin Phukan
JUDGE
Comparing Assistant