1. The plaintiff in this case obtained a decree for specific performance of a contract -for sale of certain property to the defendants. The decree directed that the defendant-purchaser was to pay the purchase-money within a month and the plaintiff thereupon should complete the sale. It appears that there was a mortgage on the property and the delay in carrying out the decree appears to have been due to the plaintiff's efforts to obtain a reconveyance from the mortgagee. The mortgage related not only to this property but also to another property which is not the subject-matter of the suit. The defendant applied by way of motion to have the contract of sale rescinded and the decree in favour of the plaintiff's vendor vacated on account of the default of the plaintiff's vendor in not executing the conveyance. The parties do not appear to have treated the time mentioned in the decree as of the essence of the obligation to perform. Ultimately, the correspondence shows that the plaintiff gave an appointment for February 6, 1926, at 11 A.M. The defendant applied through his attorneys fixing 12-30 p. M. This was scarcely sufficient time for the plaintiff's attorneys to communicate with their clients but that is not very material because the plaintiff failed to be present at the hour fixed by him, namely, 11 A.M. I am, however, satisfied that the defendant had up till then waived any period which was laid down for completion of the conveyance and also that the plaintiff vendor's default was really because he could not obtain a reconveyance from the mortgagee and not because he deliberately refused to execute the sale.
2. The first question is whether this application will lie by way of motion Sir Thomas Strangman has referred me to the case of Kurpal v. Shamrao (1922) 25 Bom. L.R. 234 That was a case in which the defaulting purchaser had obtained a decree for specific performance. The learned Chief Justice there seemed to think that the words in the final paragraph of Section 35 of the Specific Relief Act 'in the same case' referred to case (c) mentioned in that section, and his conclusion might find some support from the use of the word 'case'. For the section commences by saying that a suit may be filed for rescission and such rescission may be adjudged by the Court in any of the following 'cases'. The section, however, clearly refers to the case of a purchaser making a default in payment of the purchase money after decree and it is questionable whether the words 'in the same case' in the final clause of the section referred to case (c) as held by the learned Chief Justice or referred to the paragraph which follows the case (c) and which refers to the event of the purchaser being in wrongful possession of the subject-matter of the suit. Grammatically, the words 'in the same case' should refer to this paragraph, and if it is contended that the legislature intended those words to refer to Clause (c) the answer is that I am not concerned with what the legislature intended but with what the legislature has stated in the section. In any event, the case of a defaulting vendor who has obtained a decree for specific performance does not appear to me to be covered by a 35, and the opening words of that section clearly state that a suit may be filed. Reluctant, however, as I am to hold that a fresh suit would have to be filed to enforce the defendant's rights in case of default by the plaintiff vendor, I am driven to this conclusion by the fact that there is no provision in Section 35 for the defendant purchaser to apply by way of motion to the Court to vacate the decree and rescind the contract in the event of default by the plaintiff vendor in whose favour a decree for specific performance has been passed. I am aware that in England an application by way of motion can be made in both cases. Never. theless, as I have pointed out, the plaintiff in Kurpal v. Shamrao who obtained specific performance was the purchaser. I do not consider that case is an authority binding me where the plaintiff is the vendor in whose favour a decree for specific performance has been passed. There appears to be no doubt that the case of the plaintiff vendor obtaining a decree for specific performance and then being in default is not provided for by Section 35. If I am wrong in the view that I have taken of this section, the next question which arises is whether the decree should be vacated in the present case There is no doubt that the plaintiff has been guilty of delay and at the same time there is his explanation, which appears to be a sound one, that he was unable to obtain a reconveyance from his mortgagee. I do not think that the circumstances show that the plaintiff has deliberately refused to perform his part of the decree. The learned counsel for the plaintiff now informs me that the plaintiff has obtained a reconveyance from the mortgagee. It is clear to me that although one month, as stated in the decree, is the period fixed for completion neither party has treated it as of the essence of the obligation. I think the proper order under the circumstances will be to fix a period within which the plaintiff must complete on tender to him of the purchase money. I fix that period at a week from today.
3. No order as to costs.