The High Court dismissed a civil revision petition challenging an order allowing delivery of possession in a specific performance of contract suit, holding that the execution was maintainable and the revision failed.
Civil Revision Petition dismissed, confirming the order passed in E.A.No.176 of 2013.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON
:22.04.2022
PRONOUNCED ON :29.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.(PD).No.3750 of 2014 and M.P.No.1 of 2014
N.K.Senkaliappan
... Petitioner
vs.
1.Sri Chitra Mills, represented by its Partner S.Kumar, No.11, Rajaram Street, Thirupur Town, Tirupur District.
2.A.Natarajan 3.Sangameswaran
... Respondents
Prayer: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, praying to set aside the fair and decreetal order dated 21.07.2014 passed in E.A.No.176 of 2013, in E.P.No.185 of 2008, in O.S.No.568 of 2008 by the II Additional Sub Court, Coimbatore.
| 2 | |
|---|---|
| For Petitioner | :Mr.K.S.Karthik Raja |
| For Respondents |
:R1-Not ready notice R2-died (steps due) |
| R3-Notice Served O R D E R |
Aggrieved by an order allowing the petition in E.A.No.176 of 2013, seeking delivery of possession filed by the decree holder, the second respondent/judgment debtor has come up with this revision.
the contract dated 04.11.1987 against the revision petitioner and other respondents in O.S.No.568 of 1992, on the file of the Subordinate Court, Coimbatore and obtained a decree. As per the terms of decree, the first respondent/plaintiff was directed to deposit balance sale consideration for Rs.25,000/- within two months and the revision petitioner and other respondents, who were arrayed as defendants 1 to 3 in the suit were directed to execute a sale deed within two months thereafter and to hand over possession of the suit property, [i.e., subject matter of the agreement].
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execution petition in E.P.No.185 of 2008, seeking execution of the sale deed and as the judgment debtors failed to execute the sale deed, the executing Court itself executed the sale deed as per the terms of the decree and the sale deed was registered on 02.04.2013. Recording the same, the execution petition was closed on 15.04.2013, thereafter, the first respondent filed execution application in E.A.No.176 of 2013 for delivery of the property and the same was opposed by the revision petitioner by raising the following points:
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(c) The Execution Application was filed under Order 21 Rule 95 of
CPC, which is meant for delivery of property purchased under Court auction
and hence Execution Application filed by quoting wrong provision of law is not maintainable.
EA, in his arguments. The typed set and other relevant records are perused.
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each other and one of the partners is sufficient to represent the firm. In
case there is any dispute among the partners it is for them to work out the same in the manner known to law in appropriate proceedings. The revision petitioner who suffered a decree is not entitled to canvass that point. Even if the petition is allowed and the first respondent is granted physical possession of the suit property, it is only subject to the out come of any legal proceedings initiated by the partners of the Firm among themselves.
petitioner is that the main E.P was filed for execution of the sale deed, but E.A is filed for delivery of suit property and hence the prayer in E.A goes beyond the scope of main E.P. In a suit for specific performance, when a decree is granted for execution of sale deed, the delivery of the property covered by said sale deed is incidental to main relief. Even if there is no prayer by the plaintiff seeking delivery of the property, the executing Court can pass an order for delivery of the property in order to give full effect to the decree for specific performance. In S.S.Rajabathar vs N.A.Sayeed, reported in AIR 1974 Madras 289, His Lordship Mr.Justice M.M.ISMAIL, , [as he then was] after referring to the decisions of the various High Courts,
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held that in a suit for specific performance, grant of delivery of possession
is incidental to the main relief of specific performance and hence even if there is no specific clause in the decree, the executing Court in order to give full effect to the decree for performance, can direct the judgment debtor to deliver possession to the decree holder. Hence, it cannot be stated that E.A for delivery of possession is beyond the scope of main E.P, as it is only incidental to the main relief of performance. Further, the perusal of the decree, which is sought to be executed clearly shows there is a specific clause in the decree directing the defendant to hand over possession of the property to the decree holder. Hence, the Execution Application filed by the first respondent is maintainable and the executing Court correctly found the same was maintainable.
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While, granting a relief to the parties, the Courts are guided by the cause of
justice and in order to do complete justice, the Court can take a liberal view by accordingly interpreting the procedural law. The executing Court rightly rejected the plea raised by the revision petitioner regarding the wrong provision of law quoted by the first respondent. Therefore, there is no illegality or irregularity in the order passed by the executing Court and consequently the revision fails.
29.04.2022
Index : Yes/No Internet : Yes/No ub
To
The II Additional Sub Court, Coimbatore.
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S.SOUNTHAR, J.
ub
C.R.P.(PD).No.3750 of 2014
29.04.2022
3 issues framed by the court
Whether the execution application for delivery of possession is maintainable when the main execution petition was for execution of the sale deed.
Whether a partner of a firm can be inspected for dispute among partners in execution proceedings regarding firm possession.
Whether filing an execution application under a wrong provision of Order 21 CPC renders it non-maintainable.
Colour shows how this judgement treated each authority
S.S.Rajabathar vs N.A.SayeedExplained¶46
AIR 1974 Madras 289 · Who else cites this
2 provisions across 1 enactments
N.K.Senkaliappan
Sri Chitra Mills
A.Natarajan
Sangameswaran
S.Soumthar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
