Where the Trial Court and the executing Court are same, executing Court could entertain the application for extension of time though the application is to be treated as one filed in the main suit. On the same analogy, the vendor judgment-holder could also seek rescission of the contract of sale or take up this plea in defence to bar the execution of decree.
Under the earlier Act analogous provision was found in Section 31 of the Act. As per these provisions a suit could be filed before competent Civil Court for rectification of an instrument when through fraud or a mutual mistake of the parties a contract or other instrument in writing does not express their real intention. It is obvious that a trust-deed is not a contract in the strict sense of the term but if would certainly be covered by the expression ‘other instrument in writing’.
On the facts of the present case Section 31 of 1877 Act (Specific Relief Act) or the corresponding provisions of Section 26 of 1963 Act could be effectively invoked for rectification of the instrument of trust. Such a Court does not suffer from any inherent lack of jurisdiction, like the City Civil Court in the Andhra Pradesh case which had no such jurisdiction under Section 34 of the Indian Trusts Act.
Where settler Company had clearly indicated in the rectification proceedings that the real intention of the settler to create a public charitable trust was not clearly brought out on the wordings of the original trust-deed it would have no impact on the jurisdiction of the Civil Court to pass an order.