N K JINNAH Vs. K P KRISHNAN

JUDGEMENT

(1.) THIS revision has been filed against the order passed in execution proceedings ant to the decree for specific performance passed in favour of the respondent herein. The respondent filed O. S. No. 33 of 1985 for specific performance. The prayer did not include the prayer for possession. The decree was passed on 11. 1. 1989 granting three months time for execution of the sale deed on receipt of the balance of Rs. 2,00,000. This decree has become final E. P. No. 53 of 1991 was filed to direct the respondent to execute the sale deed. On 22. 12. 1994, E. P. No. 151 of 1994 was filed for delivery of the property, against that C. R. P. No. 3359 of 1992 was filed. But that was dismissed on 13. 8. 1993. The Supreme Court rejected the Special Leave Petition. In the meantime, the petitioner filed I. A. No. 529 of 1992 for condonation of delay of 1173 days in filing the application to set aside the exparte decree. This application was dismissed for default on 14. 7. 1992. The petitioner filed I. A. No. 785 of 1992 to set aside the order dismissing the application for default. The revision filed there against was not represented in time. The C. M. P. No. 75 of 1997 to condone the delay in representation was also dismissed. Therefore, the exparte decree became final. Thereafter, a suit was filed on the original side of this Court (Principal Bench) in which a third party to the suit obtained exparte injunction from executing the decree. This injunction was also vacated. The respondent filed C. R. P. No. 3445 of 200i against the interim order in the execution petition. This civil revision petition was dismissed on 4. 3. 2004. This sequence of events, has been submitted by the learned counsel for the petitioner.

(2.) DELIVERY was ordered and thereafter, this revision has been filed.

(3.) THE learned counsel for the petitioner would submit that the Executing Court cannot go beyond the decree and when no decree was granted for delivery of property, it is not open to the Executing Court to grant the same. The learned counsel also submitted that if at all the respondent has any right, it is only to file a separate suit for recovery of possession. The learned counsel for the petitioner relied on the judgment in Babu Lal v. M/s. Hazari Lai Kishori Lal, A. I. R. 1982 S. C. 818. The said decision squarely applies to the present case. In fact, even the opening words of para. 2 apply to the present case. They are extracted below: "2. The present petition is a typical example of the desperate effort of the judgment debtor to ward off the execution of the decree till the bailiff knocks at the door. . . . . . " it was contended before the Supreme Court by the judgment-debtor that no relief in an execution application can be granted in excess of and outside the framework of the prayer by the plaintiffs. Reliance was placed on Sec. 22 of the Specific Relief Act and it was contended that the order of the High Court was flagrant violation of the said section. The Supreme Court referred to the judgment of the Allahabad High Court in Balmukand v. Veer Chand, A. I. R. 1954 All. 643, where it was held that when a decree for specific performance of a contract of sale was silent as to the relief of delivery of possession even though such relief was not claimed in the suit, the executing Court was still competent to deliver the possession; and that it was not necessary in a suit for specific performance either to separately claim possession nor was it necessary for the Court to pass a decree for possession; and that the liability to deliver possession arose immediately on the execution of a sale deed: