Madras High Court
Gayathri Devi vs Francis on 20 January, 2022
C.R.P.(MD) No.434 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.01.2022
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.434 of 2020
and
C.M.P(MD) No.2576 of 2020
Gayathri Devi ... Petitioner
Vs.
Francis ... Respondent
PRAYER:- Civil Revision Petition filed under Section 115 of the Code
of Civil Procedure, to set aside order in E.A.No.129 of 2018 in E.P.No.
118 of 2016 in O.S.No.19 of 2012 before the learned District Court,
Sivagangai, order dated 02.08.2019 the property situated at
Thiralavudappu Village, Kanchirangal, Paiyur Pillai vayal group,
sivagangai Taluk, Sivagangai.
For Petitioner : Ms.K.Malathi
For Respondent : Mr.S.Srinivasaraghavan
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Page 1 of 6
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.434 of 2020
ORDER
It is always said that the hardship of the plaintiff would start only
when he seeks to execute the decree. The instant case is an example of
the same.
2.The respondent/plaintiff has obtained the decree on 23.12.2015
from the District Court, Sivagangai, for specific performance on the basis
of the agreement dated 26.03.2003. The plaintiff / decree holder had
filed E.P.No.118 of 2016 to execute this contested decree by seeking a
direction to judgment debtor/ defendant to execute the sale deed, since
the sale deed had not been executed by the judgement debtor. The sale
deed had been executed by the Court on 26.02.2018 and the same had
been registered on the file of the Sub Registrar Office. Thereafter, the
plaintiff has come forward with an application in E.A.No.129 of 2018
seeking recovery of possession of the suit property from the defendant or
any person in possession there of.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.434 of 2020
3.The respondent had filed the counter statement contending that
the execution petition was not maintainable as the decree did not direct
delivery of possession to the plaintiff/decree holder. The learned District
Judge, Sivagangai, by his order, dated 02.08.2019, relying upon the
various judgements of this Court as well as the Hon'ble Apex Court and
considering the provision of proviso to Section 22(2) of the Specific
Relief Act, allowed the said petition.
4.Challenging the same, the judgement debtor filed this revision
petition and obtained the stay of all further proceedings on 06.03.2020.
The stay was granted on condition that the entire sale consideration with
interest at 12% from the date of agreement till the date of deposit is made
on or before 24.03.2020 before the Executing Court in E.P.No.118 of
2016. The said order has not been complied with. Therefore, this Court
had posted the matter for orders on 01.12.2021 and the petitioner has
successfully taken several adjournments, though the respondent/decree
holder had made her submission. Today, the petitioner/judgment debtor
had finally made her submission.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.434 of 2020
5.Heard the learned counsel appearing on either side and perused
the records.
6.In the judgment of this Court reported in 2018 4 CTC 40 in the
case of G.Selvamoorthy Vs Heerachand jain and others, this Court,
relying upon the judgment reported in AIR 1982 SCC 818 (Babu Lal vs
Hazari Lal Kishori Lal and others) and other judgments of this Court,
observed that the Executing Court can pass an order of delivery of
possession, even when the decree was silent about the same. Procedure
is meant to advance the cause of justice and not to retard it. The
judgement debtor would try every trick in his possession to ensure that
the decree holder does not obtain the fruits of his decree. The proviso to
Section 22(2) of Specific Relief Act permits an amendment at any stage
to include the relief not originally sought for. It is, on this basis, the
Executing Court ordered to deliver possession without there being a
specific decree to that effect. Therefore, the order of the learned District
Court, Sivagangai, in E.A.No.129 of 2018 is well within the four corners
of the law and therefore, there is no necessity to re-visit the same.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.434 of 2020
7.In the result, this Civil Revision Petition is dismissed. The
executing court shall proceed to forthwith execute the same. No costs.
Consequently, connected miscellaneous petition is closed.
20.01.2022
Index:Yes/No
Internet:Yes/No
cp
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:-
The District Judge,
Sivagangai.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.434 of 2020
P.T.ASHA, J.
cp
C.R.P(MD)No.434 of 2020
and
C.M.P(MD) No.2576 of 2020
20.01.2022
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https://www.mhc.tn.gov.in/judis
