Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed
Section 28 of the Specific Relief Act, 1963 deals with rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. 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 The Act came into force on 01 Mar 1964.
(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ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case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(2) Where a contract is rescinded under sub-section (1), the court--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 the lessee as earnest money or deposit in connection with the contract.
(3) If the purchase 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.
Section 28, The Specific Relief Act, 1963 (Act 47 of 1963).
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
-
Birma Devi vs Subhash
Court's Decision & Legal Precedent
In a suit for specific performance of a contract of sale where the exclusive possession of the suit property is with the contracting party (original owner), a decree for specific performance simpliciter, without specifically providing for delivery of possession, gives complete relief to the decree holder and the executing court is under an obligation to hand over possession of the suit property to the decree holder. This principle flows from Section 55(1) of the Transfer of Property Act, 1882, which binds the seller to transfer possession to the buyer. However, in cases where the property is jointly held by the defendant with other persons or has passed into possession of a third party after the contract, the plaintiff must separately claim relief for possession, partition, or separate possession, as the case may be, and such amendment can be allowed at any stage of proceeding, including the execution stage.
On this section: Referenced in conjunction with Section 22 to determine when separate relief for possession is required in specific performance suits
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
-
… order passed by the Executing Court was without any jurisdiction since the appellant-decree holder had filed an application seeking permission to deposit balance sale consideration before the Executing Court and the judgment debtor had also filed application for rescission of the contract under sub-section (1) of Section 28 of the Specific Relief Act, 1963 before the Executing Court which did not have the jurisdiction to entertain the same. 3.2 Per contra, the Ld. counsel appearing for respondent No. 1 to 8 contended that Section 53A of TP Act is not applicable and the appellant's possession as part performance of the sale agreement …
-
… all the four revision applications filed by the original defendants by a common order and thereby affirmed the order passed by the executing court permitting the original plaintiff to deposit the balance sale consideration and rejecting the application filed by the defendants (judgment debtors) under Section 28 of the Specific Relief Act, 1963 (For short, "the Act") for rescission of contract. 4. The facts of this litigation giving rise to these appeals as recorded by the High Court in its impugned judgment read thus: "2. Four connected revision petitions have come up for final disposal. The learned counsel …
-
… Opposing this prayer of the decree holder, in the execution proceeding itself, the appellant(s) (i.e. the judgmentdebtors) submitted an application under Section 28[3]( page-3-0) of the Specific Relief Act, (2) Where a contract is rescinded under sub-section (1), the court— (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 …
Questions about Section 28
What have the courts held on Section 28 of the Specific Relief Act?
Birma Devi vs Subhash (06 Dec 2024) is the leading judgment on this section among those set out below: Referenced in conjunction with Section 22 to determine when separate relief for possession is required in specific performance suits.
How do I find court cases under Section 28 of the Specific Relief Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: Specific Relief Act 28, section 28 Specific Relief Act, section 28 of the Specific Relief Act. People searching for it also type specific relief act 1963 section 28 and section 28 3 specific relief act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 1 reported judgment on this section is set out on this page, beginning with Birma Devi vs Subhash (06 Dec 2024).
When did Section 28 of the Specific Relief Act come into force?
Section 28 of the Specific Relief Act, cited as Specific Relief Act 28, came into force on 01 Mar 1964, having been enacted on 13 Dec 1963. It is in force as at the date shown on this page.
Other sections of this Act
- 12. Specific performance of part of contract391 words
- 15. Who may obtain specific performance330 words
- 13. Rights of purchaser or lessee against person with no title or imperfect title309 words
- 26. When instrument may be rectified292 words
- 20. Substituted performance of contract269 words
- 20A. Special provisions for contract relating to infrastructure project260 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 15 Oct 2026. This page is not a substitute for legal advice.