RAJAKUMARAGOUDA Vs. SHARANAGOUDA

JUDGEMENT

(1.) The petitioners have challenged in this writ petition the order dated 30/08/2006 passed in the Execution Petition No.8/1995 as per Annexure-'L' holding that the execution petition filed by the decree holder is not time barred.

(2.) One Shivawwa-mother of the respondent filed a suit O.S.No.39/1971 for a decree of specific performance of the agreement of sale dated 27.07.1970 and for a decree of permanent injunction. The suit was contested. After Trial, the plaintiffs suit was decreed as prayed for with costs. The said judgment was delivered on 24th November, 1973. Shivawwa died on 25.01.1982. After her death, the respondent herein, her son, has preferred an Execution Petition No.8/1995 on 27/01/1995 for execution of the sale deed in terms of the decree. After service of notice, the petitioners, who are the legal representatives of the original defendant entered appearance and filed their written objections contending that the execution petition filed for executing the decree dated 24.11.1973 is barred by time. The Trial Court held that as in the decree no time or specific date is fixed to execute the sale deed, the sale deed has to be executed after receiving the balance sale consideration. In the event of failure on the part of the judgment-debtors to execute the sale deed, the Court shall execute the sale deed on behalf of the judgment debtors through a Commissioner. Therefore, the decree passed in a suit for specific performance is in the nature of a preliminary decree. It does not terminate the suit. Therefore, it overruled the objections and held that the execution petition is maintainable and is in time. Aggrieved by the said order, petitioners are before this Court.

(3.) Learned Counsel for the petitioners assailing the impugned order contends that, the decree for specific performance cannot be construed as a preliminary decree. The decree of specific performance becomes executable forthwith and therefore, execution petition filed after 12 years from the date of the judgment and decree, is clearly barred by time.