MARYKUTTY PHILIP Vs. VARGHESE ABRAHAM

JUDGEMENT

(1.) THE CRP is preferred against the order of the Subordinate Judge, Thiruvalla in E. P. 56/03 in O. S. 144/01. W. P. C 29596/07 is filed by the writ petitioner therein contending that for the implementation of the decree for specific performance the methodology to be adopted is to move an application on the original side under S. 28 (3) of the Specific Relief Act and that the execution petition is not maintainable. The brief facts necessary for the disposal of the matter is stated as follows.

(2.) THE execution petition is one for executing a decree in O. S. 144/01. As per the decree dated 12. 8. 03. a decree for specific performance was granted. The first defendant died after the decree and the 2nd defendant died before the decree. The additional judgment debtors 3 to 6 were then impleaded as the legal representatives of the deceased first judgment debtor. The said additional judgment debtors had raised two fold contentions, one is to the effect that an execution petition is not maintainable for enforcing a decree for specific performance and secondly that the property is not properly identifiable and therefore the property cannot be delivered to. The Court below after examination of the evidence available in the case held that the property is identifiable and therefore held that the decree holder is entitled to get execution, allowed in his favour as per the decree passed in this case.

(3.) THE first point to he considered in both these cases are regarding the maintainability of an execution petition. The learned counsel for the revision petitioner as well as the writ petitioner strongly contends before me that order S. 28 (3) of the Specific Relief Act the methodology of implementation of the decree of the Court for specific performance is enunciated and therefore if at all any remedy is there, it is to move the Court which passed the decree on the original side under S. 28 (3) for implementation of the decree.