Madras High Court
V.Krishnasamy vs K.Revathy on 26 April, 2022
C.R.P.(NPD)(MD).No.2409 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.04.2022
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(NPD)(MD).No.2409 of 2017
V.Krishnasamy ...Petitioner/Petitioner/Plaintiff
Vs
1.K.Revathy
2.K.Saravanan ...Respondents/Respondents/Defendants
PRAYER: Civil Revision Case is filed under Section 115 of Civil
Procedure of Code, to call for the record and setaside the fair and decreetal
order dated 20.10.2017 in E.P.No.36 of 2017 in O.S.No.123 of 2012 on the
file of the Additional Subordinate Judge, Kumbakonam and allow this
Civil Revision Petition with costs.
For Petitioner : Mr.H.Lakshmi Shankar
For Respondents : Mr.A.Saravanan
ORDER
The revision petitioner is the decree holder is a suit for specific
performance.
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C.R.P.(NPD)(MD).No.2409 of 2017
2.The decree holder filed E.P.No.80 of 2015 for execution of sale
deed by the Court. The said E.P was allowed on 23.03.2016. Thereafter,
the learned Additional Subordinate Judge, Kumbakonam has executed a
sale deed on 16.02.2017 in favour of the decree holder.
3.On strength of the sale deed executed by the Court, the decree
holder filed E.P.No.36 of 2017 for delivery of the property. The said
execution proceedings were resisted by the judgment debtor on the ground
that there is no separate prayer for recovery of possession in the plaint and
hence, there is no decree for recovery of possession in favour of the
plaintiff. When there is no specific or separate prayer for recovery of
possession, merely on the basis of a decree for specific performance,
delivery cannot be granted.
4.After hearing both parties, the learned Subordinate Judge relied
upon a judgment reported in 2017 (3) CTC page 729 in Vasantha
Vs.Manickam @ Thandapani to arrive at a finding that a separate prayer
is required for ordering delivery of possession of a property pursuant to a
decree for specific performance. This order is under challenge in the Civil
Revision Petition.
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C.R.P.(NPD)(MD).No.2409 of 2017
5.The learned counsel for the revision petitioner placed on record
the judgment of the Hon'ble Supreme Court delivered in Civil Appeal No.
2726 of 2022 dated 05.04.2022, in which, the judgment of our High Court
reported in 2017 (3) CTC Page 729 has been reversed. The Hon'ble
Supreme Court was pleased to hold in Paragraph No.30 of the order that in
a suit for specific performance, the prayer possession is inherent and
therefore the decree holders are entitled to possession in pursuance of the
sale deed executed in their favour. The Hon'ble Supreme Court also found
that the prayer for possession is ancillary to the prayer for specific
performance of execution of the sale deed.
6.However, the learned counsel for the respondents had contended
that unless there is a separate prayer, execution proceedings for delivery of
property cannot be ordered.
7.I have heard the learned counsel appearing on either side.
8.In a judgment relied upon by the Executing Court has been
reversed by the Hon'ble Supreme Court by judgment dated 05.04.2022
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C.R.P.(NPD)(MD).No.2409 of 2017
holding that the prayer for possession is ancillary to the prayer for specific
performance and there is no need for separate prayer for delivery of
possession. In view of the recent judgment of the Hon'ble Supreme Court,
the order passed by the Executing Court is un-sustainable in law and the
same is set aside. Accordingly, E.P.No.36 of 2017 stands allowed. This
Civil Revision Petition is allowed. No costs.
26.04.2022
Index : Yes/No
Internet : Yes/No
msa
To
1.The Additional Subordinate Judge
Kumbakonam
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)(MD).No.2409 of 2017
R.VIJAYAKUMAR, J
msa
C.R.P(NPD).(MD).No.2409 of 2017
26.04.2022
https://www.mhc.tn.gov.in/judis
