Norman Macleod, Kt., C.J.
1. A decree was passed in this suit granting specific performance to the plaintiff of the suit contract for the sale of certain land. The decree directed him to pay Rs. 12,000 as the purchase price, but unfortunately no time was mentioned within which the purchase price should be paid. As the plaintiff did not comply with the direction in the decree that he should pay the purchase price, an application was made to this Court for an order in the suit that the decree should be vacated as a consequence of such default on the part of the plaintiff. The plaintiff has now paid the money. So that the only question is whether the plaintiff should pay the costs of the motion. It is urged on his behalf that a wrong procedure has been followed, for under Section 35 of the Specific Relief Act a suit ought to have been filed in order to secure the performance of the contract or its rescission. There can be no doubt that Section 35 is somewhat obscurely drafted. First it directs that any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the Court in any of the following cases:
(a) Where the contract is voidable or terminable by the plaintiff:
(b) Where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff:
(c) Where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase money or other sums which the Court has ordered him to pay.
2. Therefore in the last case where there has been a default in payment of the purchase money which the Court has ordered a party to pay in a decree for specific performance of the contract of sale, it is open to the opponent to file a suit for a rescission of the contract. Then by the last paragraph of the section it is stated:
In the name case, the Court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether, as the justice of the case may require.
3. It is not at all clear to what the words 'in the same case' refer, but it appears to me that these words must refer to case (c) in the section, so that the Court is empowered to make an order in the suit in which a decree has already been made, to rescind ' the contract, instead of putting the opponent to file another suit for rescission. That is clearly the English practice as appears from Fry on Specific Performance, Sixth Edn., pp. 545, 547, paragraph 1171:
There are two kinds of relief after judgment for specific performance of which either party to the contract may, in a proper case, avail himself.
4. Paragraph 1172 (i):
He may obtain (on motion in the action) an order appointing a definite time and place for the completion of the contract by payment of the unpaid purchase money and delivery over of the executed conveyance and title deeds, or a period within which the judgment is to be obeyed, and, if the other party fails to obey the order, may thereupon at once issue a writ of sequestration against the defaulting party's estate and effects.
5. And paragraph 1173 (ii):
He may apply to the Court (by motion in the action) for an order rescinding the contract. On an application of this kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered : otherwise, the order will be for rescission in default of completion within a limited time.
6. In my opinion this is the practice which it has been directed should be permissible by the last paragraph of Section 35 of the Specific Relief Act, and the argument urged by Mr. Mirza that this Court has no jurisdiction to make an order on a motion of this kind after specific performance has been decreed cannot be sustained. The opponents must, therefore, pay the costs of the motion; including costs reserved.