KRISHNAMURTHY GOUNDER Vs. VENKATAKRISHNAN

JUDGEMENT

(1.) The revision petitioner is the plaintiff in O. S. No. 304 of 1996 on the file of the Principal District Munsif cum Judicial Magistrate, Chengam.

(2.) The revision petitioner filed the suit for specific performance of an agreement of sale and also for recovery of possession. The lower Court passed a decree of specific performance by Judgement and Decree dated 29.4.2004. In the decree passed there is no mention about the relief of recovery of possession and the decree only says that the plaintiff is entitled for specific performance of contract. Thereafter, the revision petitioner filed Execution Petition for execution of the sale deed as the defendants failed to execute the sale deed, the sale deed was executed by the Court on 3.1.2007 and registered as Document No. 45 of 2007 on 5.1.2007. Thereafter, the revision petitioner filed E. A. No. 118 of 2007 for delivery of possession of property and that petition was dismissed and against the same this revision is filed.

(3.) It is submitted by the learned counsel for the revision petitioner that the Court below erred in dismissing the application for delivery of possession on the ground that the trial Court declined to grant a decree for delivery of possession and in the absence of such decree for delivery of possession, the application is not maintainable. According to the learned counsel for the revision petitioner that in the Judgement reported in: Babu Lal Vs. M/s. Hazari Lal Kishori Lal, 1982 AIR(SC) 818 the Hon'ble Supreme Court considered the scope of Sections 21, 22 and 28 of the Specific Relief Act and held that even in the absence of any prayer for recovery of possession, the Court has got power to order delivery of possession though the sale deed was executed pursuant to the decree passed in the suit. He also relied upon the Judgement of this Court reported in: S. Sampoornam Vs. P. V. Kuppuswamy, 2007 3 CTC 529 wherein this Court considered the same question and after relying upon the Judgement Babu Lal Vs. M/s. Hazari Lal Kishori Lal, 1982 AIR(SC) 818 and other Judgements held that the recovery of possession can be ordered when the suit for specific performance is decreed. He therefore contended that the order of the Court below is liable to be set aside.