Disposed of a civil revision petition challenging an execution court order that directed delivery of possession. The court held that recovery of possession is ancillary to a specific performance decree.
The Civil Revision Petition was disposed of without interference.
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.
C.R.P.No.1766 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2023
CORAM:
THE HONOURABLE Dr. JUSTICE D. NAGARJUN
Civil Revision Petition.No.1766 of 2023 and C.M.P.No.11477 of 2023
1.V.Soniya Mary
2.J.Gnana Soundari 3.D.Vimala ... Petitioners
Vs.
1.R.Parthasarathy
2.S.Mary Jaequiline
...Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India to set aside the order dated 23.02.2023 passed in E.P.No.25 of 2015 in O.S.No.148 of 2010 on the file of the Sub Court, Tiruvallur and to direct the respondent to handover the possession of the E.P.No.25 of 2015 schedule property to the petitioners.
For Petitioners : Mr.B.Gurunathan
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ORDER
This Civil Revision Petition is filed challenging the order passed in E.P.No.25 of 2015 in O.S.No.148 of 2010 dated 23.02.2023 on the file of the Sub Court, Tiruvallur alleging that the execution Court had gone beyond the scope of the decree.
the petitions were dismissed by way of common order. Aggrieved by the
same, the petitioner has come up before this Court by way of the present
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Civil Revision Petition.
2015 which was filed for condoning the delay of 1440 days in filing application for setting aside exparte decree in O.S.No.148 of 2010 and C.R.P.No.1504 of 2023 is stated to be still pending.
in the present Civil Revision Petition is that the Execution Court has gone beyond the scope of decree and ordered for recovery of possession as sought for by the respondents/decree holders even though there is no decree of recovery of possession. It is settled legal position that in so far as decree in respect of specific performance of agreement of sale, the relief of recovery of possession is inherent and there is no need for seeking any specific decree for recovery of possession, thereby the Execution Court has rightly proceeded in disposing of E.P.No.25 of 2015 and ordered for recovery of possession.
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& another v. Vasanatha , reported in 2022 LiveLaw (SC) 395 , has held as
under:-
"25. A perusal of the aforesaid judgments would show that relief of possession is ancillary to the decree for specific performance and need not be specifically claimed. That was the position even under the Specific Relief Act, 1877. Section 22 of the Act was introduced in pursuance of the recommendation of the Law Commission to avoid multiplicity of proceedings and to cut down the delay. Therefore, though the preponderance of judicial opinions under the Specific Relief Act, 1877 was in favour of the fact that relief of possession is ancillary to the decree for specific performance, it was further clarified by introducing Section 22 of the Act."
21.06.2023
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jai Index:Yes/No Speaking Order: Yes/No
To
The Sub Court, Tiruvallur.
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Dr . D. NAGARJUN, J. jai
C.R.P.No.1766 of 2023
21.06.2023
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2 issues framed by the court
Whether the execution court erred in ordering recovery of possession in an execution petition filing for delivery of possession when the decree was for specific performance of contract of sale.
Whether recovery of possession is an inherent relief under a decree for specific performance of sale deed without needing a specific decree for possession.
Colour shows how this judgement treated each authority
Manickam @ Thandapani & another v. VasanathaApplied¶36
2022 LiveLaw (SC) 395
V.Soniya Mary, J.Gnana Soundari and D.Vimala
R.Parthasarathy and S.Mary Jaequiline
D. NAGARJUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
D. NAGARJUN
Parties & counsel
