Madras High Court
Muthuvenkatachalam vs Sathiya on 27 September, 2021
C.R.P. (NPD) No.2048 of 2021
and C.M.P. No.15580 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.R.P. (NPD) No.2048 of 2021
and C.M.P. No.15580 of 2021
Muthuvenkatachalam ... Petitioner /
Judgment Debtor
versus
Bhaskarane (died)
1.Sathiya
2.Sabitha
3.Diviya
4.Dinakaran (Late Minor) ... Respondents /
Decree Holders
PRAYER: Civil Revision Petition has been filed under Section 115 of the
Code of Civil Procedure, to set aside the order and decreetal order dated
28.06.2021 made in E.A.No.30 of 2019 in E.P.No.165 of 2017 in
O.S.No.334 of 2004 on the file of the learned Additional Sub-Judge,
Puducherry, thereby allowing this Civil Revision Petition.
For Petitioner : M/s.G.Sumitra
For Caveators : Mr.P.Dinesh Kumar
1/6
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2048 of 2021
and C.M.P. No.15580 of 2021
ORDER
This Civil Revision Petition is filed to set aside the order dated
28.06.2021 passed by the learned Additional Sub-Judge, Puducherry in
E.A.No.30 of 2019 in E.P.No.165 of 2017 in O.S.No.334 of 2004.
2. The learned counsel for the petitioner submitted that, one
Bhaskarane filed the suit for specific performance of the Sale Agreement. In
the said suit, a decree was passed directing the defendant in the suit to
execute the registered Sale Deed in favour of the plaintiff on payment of
balance consideration. It is the further submission of the learned counsel for
the petitioner that, the plaintiff prayed for execution of the registered Sale
Deed and to delivery of possession of the property. However, no order was
passed with regard to the delivery of possession of the property. In
pursuance of this decree, the respondents filed E.P.No.140 of 2008 for
execution of the Sale Deed and the Sale Deed was executed. Subsequently,
the legal representatives of Bhaskarane filed E.P.No.165 of 2017 for
delivery of possession of the suit property. She further submitted that in the
absence of specific decree of possession, E.P. for delivery cannot be
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2048 of 2021
and C.M.P. No.15580 of 2021
maintained. One another submission is that, when already an E.P. was filed
for execution of Sale Deed, another E.P. for delivery cannot be filed. It is
reiterated that when, the relief of delivery of possession was asked and that
was not granted, the delivery of the property can be granted in this E.P.
3. In response, the learned counsel for the respondents
submitted that, in a suit for specific performance, the relief of delivery of
possession, is inherent and part of a decree. There is no specific relief need
to be asked with regard to the delivery of possession and in the said
circumstances, the objection raised by the learned counsel for the petitioner,
cannot be entertained.
4. Considered the rival submissions and perused the
records.
5. The reading of the order of the learned trial Judge shows
that, the learned Judge relied on the judgment of this Court in
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2048 of 2021
and C.M.P. No.15580 of 2021
S.S.RAJABATHAR vs. N.A.SAYEED reported in AIR 1974 Mad.289,
wherein it was held that;
"A direction to deliver possession of the property is incidental to a
decree for specific performance of an agreement to sell immovable
property, and, therefore, the executing court has jurisdiction to delivery of
possession, although the decree in the suit for specific performance does
not provide for delivery of possession. It can not be said that in such a case
the executing Court cannot go behind the decree and order delivery of
possession.
The Executing court has jurisdiction to grant the relief of
possession as incidental to the execution of the decree for specific
performance of a Contract of Sale."
6. Thus, it is observed in this order that in any suit for
specific performance, the direction to delivery of possession for specific
performance is incidental although the decree does not provide for delivery
of possession. This judgment has squarely applies in the facts and
circumstances of this case. Though the prayer for delivery was asked and it
was not granted obviously due to some mistake or omission, following the
above said judgment of this Court, this Court finds that the order of the
learned Additional Sub-Judge, in dismissing the petition under Section 47
of C.P.C. is right and there is no reason to interfere with the order of the
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2048 of 2021
and C.M.P. No.15580 of 2021
learned Additional Sub-Judge, and the order dated 28.06.2021 passed in
E.A.No.30 of 2019 in E.P.No.165 of 2017 in O.S.No.334 of 2004 , is hereby
confirmed. Instead of filing separate Execution Petition, the learned counsel
for the respondents could very well have filed an application in the
Execution Petition for delivery. However, it is only a technical defect and
the respondents cannot be penalised for this.
7. Resultantly, this Civil Revision Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed. However, there
is no order as to costs.
27.09.2021
Speaking order / Non-speaking order
Index : Yes / No
sri
To
The Additional Sub-Judge,
Puducherry.
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2048 of 2021
and C.M.P. No.15580 of 2021
G.CHANDRASEKHARAN, J.
sri
C.R.P. (NPD) No.2048 of 2021
and C.M.P. No.15580 of 2021
27.09.2021
https://www.mhc.tn.gov.in/judis/
