HIGH COURT OF KERALA
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(1.) There vision petitioner is the judgment - debtor in E.P.No.34/2003 in O.S.No.589/1995 on the file of the Sub Court, Palakkad. The suit was filed for specific performance of an agreement dated 4th August, 1994. The suit was decreed allowing specific performance. Since the judgment - debtor has not executed the sale deed in pursuance of the decree in favour of the plaintiff within one month from the date of deposit of the balance sale consideration before Court, the decree holder got it executed through Court on 2nd January, 2002. But in spite of the execution of the sale deed, the judgment - debtor has not handed over possession of the plaint schedule property to the decree - holder. Hence, E.P. was filed for recovery of possession.
(2.) The judgment - debtor filed objection resisting the execution. He contended that O.21, R.35 C.P.C. is not applicable since there is no specific decree for delivery of the property. It is further stated that the decree - holder is not entitled to get possession of the property on the basis of the sale deed executed through Court. Even though in the suit it was specifically prayed for recovery of possession of the plaint schedule property, it was not granted except the decree for specific performance. But the Court below repelled the objection filed by the Judgment - debtor and delivery of possession was ordered, against which this Civil Revision Petition is filed.
(3.) There is no dispute that the specific performance was granted in O.S. No.5 89/1995. There was specific pleadings in the plaint for recovery of possession of the property.
The suit was decreed with costs, directing the plaintiff to deposit the balance sale consideration outstanding as per Ext. A1 agreement within a period of one month from the date of judgment, directing the defendant to execute the sale deed in respect of the plaint schedule property within one month from the deposit of the said amount and on failure of the defendant to comply with the said direction, the plaintiff was permitted to get the sale deed executed through Court. As per the revision petitioner, there is no decree for delivery of possession of the property. It is not disputed that a decree granting specific performance was allowed by the Trial Court with a direction to execute the sale deed on deposit of the balance sale consideration. Since the judgment - debtor has not complied with the direction contained in the Decree and the judgment, the sale deed was got executed through Court as per order in LA. No.3988/1999. But possession was not handed over to the decree - holder. So E.P. was filed for delivery of the property. The contention of the Judgment - debtor is that since there is no specific
direction for delivery of the property, he is not liable to surrender possession. It cannot be disputed that a decree was passed for specific performance of Ext.A1 agreement for sale. There could not be any sale without transferring possession. The execution of sale deed implies delivery of possession also. The execution Court correctly ordered delivery of the property to the decree - holder. The learned Counsel for the judgment - debtor argued that since there is no decree directing the judgment - debtor to hand over possession of the property, the remedy open to the decree - holder is to correct the decree and the execution Court is not competent to pass an order for delivery.;
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