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Judgment
G.M. Akbar Ali, J.—The defendant is the appellant in the suit. The second appeal is preferred against the decree and judgment made in
A.S.No.28 of 1999. on the file of the learned Principal District Munsif Court, Srivilliputhur (sic), reversing the judgment and decree dated
06.04.1999 made in O.S.No.424 of 1997, on the file of the learned Principal District Judge, Virudhunagar, Srivillipudur. The respondent/plaintiff
has filed the suit for specific performance, directing the defendant Devasthanam to execute the sale deed in favour of the plaintiff in respect of the
suit property in Survey No.298/2 of an extent of 3 acres 64 cents and in Survey No. 12/2 of an extent of 1 acre 63 cents in Pudhupalayam
Village, Rajapalayam Taluk, Virudhunagar, District. The brief facts of the case is as follows:
The suit property belonged to Sri Nachiyar Devasthanam represented by the executing officer. Originally the suit property was under the cultivation
of the plaintiffs father as cultivating tenant. As per the direction of the HR&CE Department, the suit property was brought to sale in a public
auction on 02.12.1964. The plaintiff was the highest bidder and he offered a sum of Rs. 1,401/- per acre. The sale was confirmed for a sum of
Rs.7,383.27/- and the plaintiff paid a sum of rupees one hundred as earnest money. The auction was confirmed by the HR&CE department on
07.08.1965, and the plaintiff was enjoying the property. However, there was some dispute between the plaintiff and the Devasthanam, regarding
the purchase of the suit property. Hence, the Devasthanam filed a suit in O.S.No.53 of 1995 and obtained an ex-parte decree on 10.02.1966 for
payment of Rs.7,283.27/- with interest at the rate of 6% . The plaintiff paid the said amount on various dates from 16.03.1972 to 06.09.1991, and
the entire sale consideration was paid with interest. The plaintiff approached the defendant for execution of the sale deed and issued a notice on
07.07.1997. The defendant raised various contention by his reply dated 21.01.1997 and refused to execute the sale deed and therefore, the suit is
filed for specific performance of the contract.
2.The suit was resisted by the defendant on various grounds. The defendant/Devasthanam would admit that there was a public auction and the
plaintiff was the highest bidder to purchase the property for a sum of Rs.7,383.27/- and the auction was confirmed. It is submitted that after
payment of the earnest money of Rs.100/- the plaintiff did not pay the sale consideration and therefore, the defendant has filed the suit for specific
performance in O.S.No.53 of 1965 and obtained a decree to the effect that the defendant therein has to deposit a sum of Rs.7,383.27/ with
interest on or before 10.04.1966 and to take sale deed executed in his favour. The plaintiff did not deposit the money and failed to get the sale
deed executed in his favour, therefore, the sale agreement between the parties have come to an end as on 10.04.1966. The plaintiff paid various
amounts for 19 years without rhyme or reason and he demands to execute a sale deed in favour of him, which is not justifiable. The defendant
temple is under the administration of the HR&CE Board. The property of the temple cannot be sold without prior sanction from the commissioner
of HR&CE. The notice dated 07.07.1997 was suitably replied and the plaintiff is not entitled for any relief and the suit is barred by resjudicata and
also barred by limitation.
3.On the basis of the above pleadings, the learned trial Judge framed triable issues and on analysing the oral and documentary evidence, the trial
Judge found that the plaintiff is not entitled for the relief of specific performance and thus dismissed the suit. The plaintiff preferred the appeal
before the learned principal District Judge, Virudhunagar, Srivillipudur raising various grounds. The learned first appellate court found that in
pursuant of the decree in O.S.No.53 of 1965, the plaintiff has paid the entire sale consideration and the suit for specific performance is
maintainable and the defendants are liable to execute the sale deed in favour of the plaintiff and thereby allowed the appeal reversing the judgment
of the trial court. Aggrieved by the said decision of the first appellate court, the plaintiff has preferred the present appeal on the following grounds:
that the learned Judge has completely overlooked the provisions contained in Section 20 of the Specific Relief Act and has exercised his
jurisdiction which is totally discriminatory in nature in a most arbitrary manner which has resulted in grave miscarriage of justice.
2.that the learned Judge by his judgment and decree has granted the enforcement of the decree in O.S.No.53 of 1965 Sub Court,
Ramanathapuram without even any proceedings being taken out by the respondent to execute the said decree.
3.that the learned Judge failed to see that the present suit has been filed by the respondent only as mode of execution of the decree dated
10.02.1966 when Ex.A.4 in O.S.No.53 of 1965 Sub-Court, Ramanathapuram the said procedure adopted by the respondent is not only
substantially erroneous but also barred by section and section 47 of C.P.C.
4.that the learned Judge failed to see that irrespective of the fact that the respondent was only a defendant in the earlier suit O.S.No.53 of 1965
and that to only a exparte decree, the same is conclusive as between the appellant and respondent and no fresh suit can be brought with reference
to the same subject matter by the respondent.
5.that the Learned Judge failed to see that u/s 28(4) of the Specific Relief Act the respondent cannot filed a separate suit for any relief which he
can claim u/s 28 of the Specific Relief Act and the decree in O.S.No.53 of 1965 can be enforced only in execution"".
On admission the following questions of law were framed:
1 .Whether the suit was barred by Section 47 of Civil Procedure Code?
Whether the lower appellate Court was justified in granting the relief of specific performance by recognising the uncertified payment outside
Court in discharge of the decree in O.S.No.53 of 1965?
3.Whether the plaintiff was entitled to a decree for specific performance having approached the Court with unclean hands?
4.Whether the lower appellate Court was right in holding that Section 28(4) of Specific Relief Act would not apply to the present suit?
5.Mr.S.Parthasarathy, the learned Senior Counsel appearing for the appellant/Devasthanam submitted that the suit filed by the respondent for
specific performance is ill conceived and the trial Court has rightly dismissed the suit and the first appellate court has erred in allowing the appeal
and granting the relief for specific performance. The learned counsel pointed out that the suit is barred u/s 47 of the Civil procedure Code. He
further pointed out that the plaintiff, being a successful bidder in the public auction dated 02.12.1964, failed to pay the sale consideration of
Rs.7,383.27/- and failed to take any action to get the sale deed executed from the Devasthanam. The learned counsel submitted that the
Devasthanam, approached the court in O.S.No.53 of 1965 for a specific performance of contract, and the plaintiff has failed to perform his part of
contract for payment of the said sale amount with interest and take the sale deed in his favour. The learned counsel also pointed out that after the
decree passed in O.S.No.53 of 1965, the plaintiff took 19 long years to pay the money and never bothered to take the sale deed in his favour.
The learned counsel further submitted that any dispute arising between the parties to the proceedings has to be decided only u/s 47 of C.P.C., and
not on a separate suit.
6.The learned counsel contended that as per the decree in O.S.No.53 of 1996, the plaintiff ought to have deposited the entire sale consideration
on or before 10.04.1966 and take the sale deed from the Devasthanam under the decree. The said decree has attained finality, since, the plaintiff
failed to comply with it, the fresh suit is barred by the decree in O.S.No.53 of 1965. The learned counsel also pointed out that u/s 34 of HR&CE
Act, the prior approval of the commissioner of HR&CE is mandatory for sale of any temple property and therefore, the sale cannot be executed
without prior permission of the Commissioner, as per HR&CE Act. The learned counsel further pointed out that u/s 28 of the Specific Relief Act
1963, the contract is rescinded and the plaintiff cannot file a fresh suit for specific performance.
7.The learned counsel for the respondent pointed out that only in pursuant of the decree in O.S.No.53 of 1965, the plaintiff has paid the decree
amount with interest and called upon the defendant to execute the sale deed, As the defendant failed to execute the sale deed, the plaintiff filed the
present suit for specific performance and the first appellate court has rightly decreed the suit. The learned counsel pointed that section 47 of the
CPC is not applicable and there is no execution proceedings pending between the parties. The learned counsel also pointed out that though there
was a condition in the decree in O.S.No.53 of 1965 for payment of the balance amount on or before 10.04.1966 and take a sale deed, only on
the instance of the defendant, the plaintiff paid the balance amount on various dates, which was accepted by the defendant without any objection
and the defendant is now estopped from denying the execution of the sale deed after taking such balance sale consideration.
8.The learned counsel further pointed out that Section 28 (4) of the specific Relief Act is not applicable as the contract of sale between the parties
is not rescinded. The learned counsel also pointed out that clause 6 of the action notice refers to prior approval of the commissioner of HR&CE
and therefore, Section 34 of the HR&CE Act is not applicable and the time is not essence of contract. According to the learned counsel, the
plaintiff is right in approaching the court for specific performance of contract and the same was rightly granted by the first appellate court.
The learned counsel appearing for the appellant relied on the judgment in K.V.Pushpavalli vs. Arulmighu Theerthabaleeswarar Devasthanam,
reported in 2006 (3) MLJ 437 = 2006 3 L.W. 66, wherein this court held that,
Under Section 34 of the HR&CE Act, any alienation of immovable property of any religious institution by way of sale, mortgage, exchange or
lease for a term exceeding five years shall be null and void, unless sanctioned by the Commissioner as being beneficial or necessary for the
institution. The Commissioner shall accord such sanction only with the previous approval of the Government and subject to Government''s
directions in this regard. The Commissioner may, in according the sanction, give directions as to the utilisation of the amount raised, the investment
of the amount, etc. An appeal shall lie to the Court against any such order at the instance of a Trustee or interested person"".
The learned counsel also relied on another judgment in T. Subbaraman and Others Vs. Sri Vedanda Desikar Devasthanam and The
Commissioner, Hindu Religious and Charitable Endowment Board, wherein this court held that,
RATIO DECIDENDI
I.'' The High Court cannot issue a writ either to compel the Devasthanam to alienation or to direct the Commissioner, Hindu Religious and
Charitable Endowments or the State Government to accord approval for sale of property of religious institution, unless the mandatory requirements
u/s 34 of Tamil Nadu Hindu Religious and Charitable Endowments Act are satisfied.
II. The mandatory requirements u/s 34(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act have to be complied with by the
Commissioner before according sanction for exchange/sale/mortgage/lease, for a term exceeding 5 years, of any immovable property belonging to
any religious institution.
III. It is the bounden duty of the trustees of the temple to secure the maximum advantage to the trust/temple.
IV.Without the consent of the trustees, even the Commissioner, cannot sanction or pass orders for sale of their properties.
11.He also relied on another judgment in S.Govindasamy Naidu and Others vs. Poorna Valli and Others reported in 1993-The Madras Law
Journal Reports 390, wherein this court held that,
The temples being religious institutions and therefore, the trust being public trusts they would be governed by the provisions of the Hindu Religious
and Charitable Endowments Act. Section 34 of the Act lays down inter alia, that any sale of any religious institution shall be null and void unless it
is sanctioned by the Commissioner as being necessary or beneficial to the institution"".
12.The learned counsel also relied on the judgment in Hungerford Investment Trust Ltd., vs. Haridas Mundhra and others, reported in AIR 1972
SCC 1826, wherein the Hon''ble Supreme Court has held that the right to rescind the contract u/s 28 of Specific Relief Act, can arise only, if the
purchaser makes default in paying the purchase money ordered to be paid under the decree.
13.The learned counsel relied upon the judgment in Chhagan Lal vs. The Indian Iron and Steel Co., Ltd., reported in AIR 1979 CALCUTTA
160, wherein it was held that when a decree is passed in favour of the plaintiff in the suit, the plaintiff is to follow up the decree and obtain the relief
granted by making it effective according to the law prescribed. The CPC says, how the decree is to be executed and the decree is not to be
executed. If the plaintiff/decree holder allows the decree to be barred by limitation for execution, no separate suit can be filed for obtaining the
same relief or reliefs based upon the decree.
14.The learned counsel also relied on the judgment in Govinda Menon Raman Menon and others vs. Krishna Pillai Kesava Pillai and others
reported in AIR 1955 TRA-CO. 51, wherein the full Bench of Travancore of Cochin has held that the terms of section 47 of C.P.C. are
preemptory and it states that all questions falling within its scope shall be determined by the execution court and not by a separate suit.
15.He relied on the judgment in Rabindra Nath Roy Choudhury and others vs. Dhirendra Nath Roy Choudhury and another reported in
A.I.R.1940 Calcutta 82 for the same proposition.
I gave a careful consideration of the rival contentions. It is admitted that the suit property belonged to the Nachiyar Devasthanam, Srivillipudur
and there was a public auction on 02.12.1964 and the defendant was the highest bidder to purchase the property for a sum of Rs.7,383.27/-, he
had paid an earnest amount of Rs.100/- and thereafter he did not pay the balance amount. The executive officer of Devasthanam filed O.S.No.53
of 1965 for specific performance of contract for payment of the balance sale consideration. An ex-parte decree was passed, directing the
purchaser to pay the balance of Rs.7383.27/- with interest, within the stipulated time and on such payment directing the vendor to execute the sale
deed and on his failure, directing the purchaser to get the sale deed executed.
17.This decree was passed on 10.02.1966, the time granted expired on 10.04.1966 and the purchaser did not pay the amount. On 10.12.1971,
the executive officer of the Devasthanam, sent a notice to the purchaser to pay a sum of Rs, 1166.29/- being the decree amount in O.S.No.53 of
1965, failing which, legal actions would follow. This was followed by series of notices up to 04.09.1972. Thereafter, the plaintiff paid the amount
on various dates starting from 04.10.1972 to 06.09.1991. The plaintiff sent a notice to the Devasthanam, requesting them to execute the sale deed
in his favour as he had paid the entire sale consideration. On receipt of such notice, first time, the executive officer of Devasthanam, sent a reply
stating that the sale cannot be executed for various reasons and therefore, the plaintiff filed the present suit for specific performance of execution of
sale deed in his favour.
18.The Devasthanam resisted the suit and the main issue before the trial Court was whether the suit is barred by limitation under Article 54 of the
Limitation Act, 1963. The lower court found that the last payment was on 06.09.1991 and the suit for specific performance was filed after three
years and therefore, it is barred by limitation. The trial court also found that the decree in O.S.No.53 of 1965 was passed in the year 1966 and the
limitation for executing the said decree is 12 years and the suit is filed beyond 12 years and therefore, the plaintiff was non-suited.
19.However, on appeal the first appellate court found that even after the expiry of the time limit granted in O.S.No.53 of 1965 the Devasthanam,
demanded the payment of the balance sale consideration and went on receiving the same without any objection and as the entire safe consideration
has been paid, the plaintiff is entitled for specific performance of contract and directed the defendant to execute the sale deed.
As stated supra, the first contention of the learned counsel for the appellant is that the suit is barred u/s 47 of the Civil Procedure Code.
Section 47 C.P.C. reads as follows:
47.Questions to be determined by the Court executing decree:-(l) All questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing
the decree and not by a separate suit.
(2)(omitted by Amendment Act, 1976)
(3)Where a question arises as to whether any person is or is not the representatives of a party, such question shall, for the purposes of this section,
be determined by the Court.
In my considered view, Section 47 applies when there is an execution proceeding pending. What is contemplated under Section47(1) is that all
questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or
satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Therefore, the court which can
determine the questions arising between the parties is the court executing the decree. In any event, the present suit is filed for specific performance
to execute the sale deed on payment of the entire sale consideration. There is no question arising between the parties relating to the execution,
discharge or satisfaction of the decree. The only question is whether the purchaser has to go for an execution of decree in O.S.No.53 of 1965
dated 10.02.1966 or for a separate suit for specific performance?
22.Coming to the next contention of the appellant that section 34 of the HR&CE Act bars alienation of the any temple property without prior
approval of the commissioner of HR&CE Department.
23.This contention is untenable as the public auction itself was approved by the commissioner and the sale was confirmed for the highest bidder
only on the approval of the commissioner as early as 1965. It is not a fresh alienation for obtaining the approval of the commissioner of HR&CE,
u/s 34 of HR&CE Act.
24.The next contention of the appellant is that the contract is rescinded u/s 28 of the Specific Relief Act, 1963. Section 28(1)of the Act reads as
follows,
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.
To invoke the benefit u/s 28, the vendor ought to have made an application for rescission of the contract and such rescission is not automatic
u/s 28(1) of the specific relief Act. As per section 28 (1), the vendor ""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"". It is made clear that the vendor has to apply to the court and only
on such application, the contract may be rescinded.
The next contention raised by the appellant is that only in pursuance of the decree passed in O.S.No.53 of 1965, the purchaser has been
paying the money and in any event, he ought to have executed the decree within 12 years, which expired in the year 1978.
27 .Interestingly, it is only the Executive officer of the Devasthanam who demanded the payment of the decree amount from 10.12.1971 through
various notices, thinking that the money payable to the temple under the decree is due under a money suit. The purchaser sent alerter stating that he
has paid the decree amount of Rs.7,400/- and therefore, requested the Devasthanam to execute and register the sale deed in his favour by a letter
dated 20.05.1973 which is marked as Ex.A.17. The Executive officer has written to the Assistant Commissioner of HR&CE, Madurai. under
Ex.A.18 dated 05.03.1976 stating that the decree amount of Rs.7,400/-has been paid. Under Ex.A.19, the Assistant Commissioner of HR&CE,
writes to the purchaser directing him to pay a sum of Rs.4,550/- towards interest and after the said payment, get the sale deed executed. Under
Ex.A.21 dated 06.09.1991, a receipt is given stating that the entire decree amount with interest in O.S.No.53 of 1965 is satisfied.
28.Article 136 of Limitation Act 1963 deals with the execution of any decree for which the period of limitation is 12 years and the period begins
when the decree becomes enforceable.
29.Under Ex.A.19 dated 03.04.1974, the Assistant Commissioner of HR&CE, directed the plaintiff to pay the interest of Rs.4,550/-and get the
sale deed executed and the plaintiff could have paid this amount and on the failure of the Devasthanam to execute the sale deed, he could have
executed the decree in O.S.No.53 of 1965, dated 10.02.1966. But, he neither paid nor filed any execution petition. The plaintiff paid the balance
amount by installments and completed the same by the receipt dated 06.09.1991. What is the effect of the acknowledgment of this payment?,
whether this acknowledgment gives a fresh cause of action to file a suit for specific performance of contract is to be seen.
30.According to the plaintiff, the final payment is only in pursuance of the earlier contract and the time is not the essence of contract and therefore,
he is entitled to file a separate suit for specific performance. According to him, in pursuance of the said contract, he has approached the Court for
the first time for specific performance of the contract. When the vendor has already filed a suit for specific performance in O.S.No.53 of 1965,
whether the purchaser can file another suit for specific performance on the same cause of action in a later date is also to be decided.
31.The learned counsel relied on Section 28(4) of Specific Relief Act. Section 28 deals with rescission of contract, and Clause 4 bars a separate
suit in respect of any relief, which may be claimed under this section. Section 28(3) reads as follows:
(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 of lease by the vendor or lesser;
(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.
32.The Sub Clause(3) empowers the purchaser to approach the Court which passed the decree by an application claiming for the relief of
execution of proper conveyance. But the condition precedent is, the purchaser ought to have paid the purchase money within the period allotted by
the decree or such further, period as the Court may allow.
33.The plaintiff has not paid the money within the period prescribed by the decree and the Court has not extended the period, but the parties have
extended the period between themselves and it took 25 years for the plaintiff to pay the purchase money as decreed in O.S.No.53ofl965.
34.Though, the time is not the essence of contract, the parties are expected to perform their part of contract within a reasonable time. u/s 16 of the
Specific Relief Act, specific performance of a contract cannot be enforced in favour of a person if he fails to prove that he has performed or has
always been ready and willing to perform the essential terms of contract, which are to be performed by him. Acceptance of balance sale
consideration by the temple after 25 years is no way to be considered that the contract has been renewed in the year 1991. The plaintiff has not
filed the suit for specific performance immediately after 17.01.1971. He issued a notice under Ex.A.23 calling upon the defendant to execute the
sale deed on 29.01.1977. The defendant has suitably replied and refused to execute the sale. According to the plaintiff, the cause of action arose
only on such reply and the suit was filed on 16.11.1997. The lower appellate Court found that time is not the essence of contract and the suit is not
barred by rejudicata and also not barred u/s 28 of Specific Relief Act. According to the Lower appellate court as per the decree in O.S.No.53 of
1965, the plaintiff has paid the entire purchase money and therefore, the defendant is liable to execute the sale deed. It is also pertinent to note that
the defendant Devasthanam has not approached the Court for rescinding the contract u/s 28(1) of Specific Relief Act, nor took any action to
recover the possession from the plaintiff and continue to receive the meager sum of Rs.7.383.27/- for a period of 25 years.
35.The learned counsel for the respondent/plaintiff would submit that for specific performance suit, the courts have to exercise the judicial
discretion u/s 20 of the Specific Relief Act and the rival hardship has to be seen. The learned counsel also argued that the plaintiff has been in
possession and he has also paid the entire amount. Hence, denial of specific performance would cause great hardship and on the other hand, the
defendant would not suffer any hardship.
36.0n the contrary, the learned counsel for the appellant would submit that for the fault of the officials of the Devasthanam, the temple property
cannot be sold against the interest of the temple. In 1996(1) L.W.331, this Court has held that the idol being in the position of the minor, the Court
should astute to protect the interest of an idol in any litigation and the Court has also held that if there is some slackness on the part of the Executive
Officer or even the trustees of the temple, it is the duty of the Court to see that the idol does not suffer loss thereby. In the decision
(AA.Gopalakrisknan vs. Cochin Devaswom Board and others) reported in A.A. Gopalakrishnan Vs. Cochin Devaswom Board and Others, the
Hon''ble Supreme Court has held that the properties of temples and Devaswom boards, require to be protected and safeguarded by their
trustees/archakas/employees. It is also the duty of the Court to protect and safeguard the properties of religious and charitable institutions from
wrongful claims or misappropriations.
37.According to the plaintiff, the cause of action for the suit arose on 02.12.1964 when the auction purchase was held, on 07.08.1965 when the
sale was confirmed, on 10.02.1966 when the decree was passed in O.S.No.53 of 1965 and on various dates from 16.03.1972 to 06.09.1991
when the defendants have demanded the payment of decree amount and when the plaintiff has made the payments. Therefore, according to the
plaintiff, it is the suit for specific performance based on the contract dated 02.12.1964.
38.In my considered view payment on 06.09.1991 in the acceptance of the sale will not give rise to a fresh cause of action. There fore, the present
suit for specific performance of a contract is not maintainable. Therefore, the Court is not bound to grant the relief for specific performance merely
because it is lawful to do so.
39.In view of the aforesaid findings, I am of the considered view that;
(i) since the cause of action for the present suit is based upon the contract dated 02.12.1964 and the decree dated 10.02.1966, the second suit for
specific performance is barred.
(ii) u/s 28(1) of the specific Relief Act, the Court which passed the decree in O.S.No.53 of 1965 alone can extend further period to pay the
purchase money.
(iii) the Court cannot recognise payment out side Court in discharge of the decree in O.S.No.53 of 1965.
(iv) the acts of the officers of Devasthanam in demanding and receiving the payments as if the decree amount is payable under the money decree is
detrimental to the interest of the Devasthanam and the courts are bound to protect the interest of the temple property.
(v) though the time is not the essence of contract, the transferee must have paid the purchase money within a reasonable time,
(vi) The discretion u/s 20 of the Specific Relief Act cannot be exercised though the plaintiff is in possession and paid the entire purchase money as
the hardship of losing a valuable property would be only on the Devasthanam, a religious endowment. On the contrary, no hardship is caused to
the plaintiff as he is in possession and enjoyment of the suit property without any payment, except his purchase money and that too for a period of
25 years.
(vii) Section 47 of the CPC is not applicable to the present suit. u/s 28(3) of the Specific Relief Act, if the purchaser pays the purchase money in
pursuance of a decree, the Court may, on application made in the same suit, grant a relief of execution of proper conveyance. u/s 28(4) of the said
Act, no separate suit in respect of any relief which may be claimed u/s 28 shall lie. Since, O.S.No.53 of 1965 is a suit for specific performance at
the instance of the vendor and a decree has been passed directing the purchaser to pay the purchase money, the parties can approach only the
court which passed the decree. Even assuming that the parties themselves have extended the further period of payment, the purchaser is barred
from filing a separate suit for execution of the sale deed.
42.Accordingly, the findings of the lower appellate Court are unfounded and liable to be set aside and the questions of law answered accordingly.
In the result, the appeal is allowed and the judgment and decree of the lower appellate Court is set aside and the judgment and decree of the trial
court is restored.