VIJAY KUMAR Vs. HANUMAIAH

JUDGEMENT

(1.) The petitioner has filed an application in Ex.Case No.11/2023 to hold an enquiry on his application before executing the decree for specific performance in O.S.No.297/2010 on the file of the Principal Civil Judge and JMFC, Maddur (the civil Court which is also 'the executing Court' and is referred to accordingly]. The executing Court has rejected this application, which is filed under Sec. 151 of the Code of Civil Procedure, 1908, opining that it is only intended to deny the decree holder the benefits of the decree for specific performance. The executing Court has also opined that the petitioner has not prosecuted this application. It is seen from the further orders in the execution case that the decree holder is permitted to deposit a sum of Rs.1,00,000.00 and a Court Commissioner is appointed to execute the sale deed.

(2.) However, Sri. N.Shantkumar, the learned counsel for the petitioner, submits that though warrant is issued, his instructions are that the sale deed is not yet executed. As the respondents have remained absent, this assertion and the circumstances that are canvassed as against the impugned order remain unopposed. The merits of the executing Court's impugned order are examined in the light of the following circumstances, which are highlighted by Sri. N.Shantkumar;

(3.) These circumstances could command considerable right in the petitioner and if there is to be execution of the sale deed in specific performance based on an earlier judgment and decree, this Court is of the considered view that the application under the provisions of Order XXI Rules 97-100 of CPC would be well maintained. The executing Court could not have rejected the application as one filed only under Sec. 151 of CPC. Further, there is considerable force in the submissions by Sri. N. Shantkumar that the executing Court's opinion that the petitioner has not prosecuted the application is not justified inasmuch as in none of the orders on the previous dates of hearing, his absence is recorded. In the aforesaid circumstances, the following: