By S&S Co. Advocates & Solicitors · Published 24 October 2026 · Informational content, not legal advice: see our disclaimer
A plaintiff wins a suit for specific performance, the decree directs the balance sale consideration to be deposited within a fixed period, usually a couple of months, and then the money isn't ready in time, a loan sanction slips, title clearance drags on, or the seller simply refuses to cooperate on the paperwork needed to close. The seller's lawyer then argues the decree has defeated itself: the buyer missed the court's own deadline, so the property is gone for good.
That argument sounds tidy, and sellers raise it often, but it isn't how the law actually works. A specific performance decree does not usually self-destruct the day a deposit deadline passes. Section 28 of the Specific Relief Act, 1963 gives the court that passed the decree continuing power over it, to extend time on the buyer's application or, on the seller's application, to rescind the contract. A short run of recent Supreme Court rulings deals with exactly this fact pattern, and none of them treat a missed date as the end of the story on its own.
What Section 28 Actually Says, and Why It Exists
Section 28 keeps the suit alive even after a decree for specific performance has been passed, by giving the same court continuing jurisdiction over that decree. If the purchaser fails to pay or deposit the purchase money within the period the decree fixed, the seller can apply, in that same suit, for rescission of the contract and the decree. Equally, the purchaser can apply, in the same suit, for an extension of that time.
The provision is deliberately two-sided. It is not simply a weapon the seller can point at a late buyer; it is also the buyer's own route back to the court when circumstances genuinely require more time, and courts have treated the power to extend as available quite apart from the general thirty-day extension rule under Section 148 of the Code of Civil Procedure, since Section 28 operates on its own separate footing.
Delay on Its Own Does Not Kill the Decree
A December 2025 ruling of the Supreme Court, Dr. Amit Arya v. Kamlesh Kumari, held that some delay by the buyer in depositing the balance sale consideration beyond the timeline the decree fixed will not make the decree inexecutable, provided the buyer remained ready and willing to perform throughout. Readiness and willingness, not punctuality down to the day, is the test the Court actually applied.
This matters because sellers often frame a missed date as an automatic, self-operating forfeiture, as though the decree carried its own expiry clause. Courts have consistently resisted reading decrees that way in the absence of language in the decree itself saying the right lapses automatically on default, preferring instead to ask whether the buyer's conduct, taken as a whole, still shows genuine readiness to complete the purchase.
Anand Narayan Shukla v. Jagat Dhari: The Decree-Passing Court Keeps Control
In Anand Narayan Shukla v. Jagat Dhari, 2026 INSC 463, the Supreme Court addressed this question directly and held that a decree for specific performance does not automatically become unenforceable merely because the deposit deadline in the decree was missed. The court that passed the decree retains jurisdiction, right up until the sale deed is actually executed pursuant to the decree, to either rescind the contract and the decree for non-payment within the stipulated period, or to extend that period.
What this means practically is that a buyer who has missed the date is not automatically shut out. The buyer can go back to the same court and ask for more time, and the application will be considered on its merits, including how long the delay was, why it happened, and whether readiness to perform has continued, rather than treated as barred simply because the original date has already passed.
When Courts Have Actually Allowed Rescission
Rescission under Section 28 is not automatic either, and is squarely discretionary. In A. Chanda v. Rattni, decided by the Supreme Court in 2007, rescission was upheld specifically because the plaintiff buyer had made no application at all for deposit or for extension of time, neither before the trial court nor before the High Court, essentially doing nothing to protect the decree once the deadline passed.
The contrast matters. A buyer who files an application explaining the reason for the delay and asking for a short extension is in a fundamentally different position from a buyer who lets the date pass and takes no steps at all. Courts have been far more willing to preserve a decree for the former than for the latter, since silence and inaction are what tends to persuade a court the buyer has in truth given up on performing.
File in the Same Suit, Not a Fresh One
Ramankutty Guptan v. Avara, decided by the Supreme Court in 1994, confirms that an application for rescission or for extension of time under Section 28 belongs in the same suit that produced the decree, rather than in a fresh proceeding. The reasoning is straightforward: keeping the dispute within the original suit avoids a second round of litigation over what is, at bottom, a single underlying agreement to sell.
A buyer who has missed a deposit date should therefore move an application in the original suit as soon as the problem becomes clear, rather than waiting to be dragged into a fresh rescission suit filed by the seller, or assuming the matter can be sorted out through separate proceedings later.
When an Appellate Court Changes the Decree
A February 2025 decision (Ram Lal v. Jarnail Singh, 2025 INSC 301, decided 25 February 2025) addressed what happens when an appellate court varies a trial court's specific performance decree without itself fixing a fresh deposit date. Order XX Rule 12A of the Code of Civil Procedure requires the court disposing of such an appeal to fix its own period for depositing the balance sale consideration, rather than leaving the trial court's earlier deadline to govern by default. The Supreme Court has held that if the appellate court fails to fix that fresh period, the decree does not become inexecutable on that account: the court retains discretion under Section 28 to fix or extend the deposit time, weighing the decree-holder's bona fides, the reason and length of the delay, and the equities created in the meantime.
The practical lesson for a buyer going through an appeal is to ask the appellate court explicitly to fix a deposit date if the decree is being varied, rather than leave the point ambiguous and hope a later court resolves the ambiguity in the buyer's favour.
What to Do Before, and Right After, You Miss the Date
A buyer who sees the deadline approaching and knows the funds will not be ready should file an application for extension in the original suit before the date passes, setting out the specific reason, a loan sanction pending, title clearance awaited, or the seller's own non-cooperation in executing transfer documents, rather than waiting until after the default to explain it. Depositing whatever part of the consideration is actually ready, even if short of the full amount, helps demonstrate continuing readiness and willingness rather than drift.
A seller resisting execution is in the mirror-image position: sitting on the buyer's default without applying for rescission, and later arguing laches once the buyer finally moves, tends to fare worse than promptly applying for rescission under Section 28 as soon as the deadline passes without payment. Courts have shown little patience for either side treating silence as a strategy.
Frequently Asked Questions
Does missing the deposit deadline automatically mean the buyer loses the property?
No, not automatically. The Supreme Court has made clear the decree does not lapse on its own, and the court that passed it retains the power to extend time or, on the seller's application, to rescind the contract, with the outcome turning heavily on whether the buyer remained ready and willing and acted promptly once the default came to light.
Who is supposed to apply to the court, the buyer or the seller?
Either side can apply under Section 28. The seller typically applies for rescission of the contract and decree, while the buyer applies for an extension of time to deposit, and courts have treated a buyer's complete inaction, no application of any kind, as the strongest ground on which a seller's rescission application succeeds.
Should the buyer file a fresh suit to sort this out instead of going back to the original court?
No. The Supreme Court in Ramankutty Guptan v. Avara held that an application for rescission or extension under Section 28 belongs within the same suit that produced the decree, specifically to avoid separate rounds of litigation over what is really one dispute.
What if an appellate court changed the decree but never mentioned a new deposit date?
The buyer's position is generally protected, but not because the old deadline automatically continues. Order XX Rule 12A requires the appellate court to fix its own deposit period when disposing of the appeal, and the Supreme Court has held that if it fails to do so the decree does not become inexecutable on that account, since the court retains discretion under Section 28 to fix or extend the time.
References & Further Reading
The provisions and rulings below were relied on for this guide. The position can change with amendments and later decisions, so check the current text and the latest case law before acting on any of it.
- Section 28, Specific Relief Act, 1963 (rescission of contract for non-payment, or extension of time to pay, in the suit that resulted in the decree)
- Order XX Rule 12A, Code of Civil Procedure, 1908
- Section 148, Code of Civil Procedure, 1908 (general power to enlarge time, for contrast with the separate power under Section 28)
- Anand Narayan Shukla v. Jagat Dhari, 2026 INSC 463, Supreme Court of India
- Dr. Amit Arya v. Kamlesh Kumari, Supreme Court of India (decided 19 December 2025)
- Dr. Amit Arya v. Kamlesh Kumari, Supreme Court of India (decided 19 December 2025)
- A. Chanda v. Rattni, Supreme Court of India, 2007
- Ramankutty Guptan v. Avara, Supreme Court of India, 1994