Application For Delivery Of Possession Can Be Filed In Specific Performance Suit Itself; Separate Execution Petition Not Required: Orissa HC
The Orissa High Court observed that an application for delivery of possession can be filed in the specific performance suit itself.
The court said that a plaintiff need not file any separate execution application as the court does not cease to have jurisdiction after passing of the decree of specific performance under Section 28 of the Specific Relief Act, 1963.
A writ petition was filed by the Petitioner-plaintiff assailing the order passed by a civil judge rejecting the application filed by the plaintiff to direct defendants for effective delivery of possession.
The Bench of Justice K.R. Mohapatra observed, “Law is no more res integra in the cases of Joseph and another (supra) and Ramankutty Guptan (supra) that an application for delivery of possession under Section 28(3) (b) of the Act would necessarily be filed in the same suit. It would obviously mean in the suit itself and not in an execution proceeding. Law is also equally clear that after passing of the decree for specific performance, the Court does not cease to have any jurisdiction. The Court retains the control over the decree even after the decree has been passed. Thus, learned trial Court was competent to exercise the power under Section 28(1) of the Act either for extension of time or for rescinding the contract or in particular cases, for delivery of possession, partition and separate possession of the property, if deed of conveyance has already been executed.”
Advocate Dwarika Prasad Mohanty appeared for the Petitioner.
Counsel for the Petitioner submitted that a separate execution case is not required to be filed seeking for delivery of possession of the suit land and an application under Section 28(3) would be maintainable in the same suit for delivery of possession of the property in a suit for specific performance of contract. He, therefore, prayed for setting aside the impugned order and directing the Trial Court to take steps for delivery of possession of the suit property to the Plaintiff-Petitioner.
The Court relied on the Supreme Court’s ruling in Ramankutty Guptan v. Avara (1994 SC) which observed as follows, “The question then emerges is whether it should be on the original side or execution side. Section indicates that it should be "in the same suit". It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under S. 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed, namely, the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law.”
The Court therefore set aside the impugned order and directed the trial court to take steps for delivery of possession to the Petitioner-plaintiff.
Cause Title: Prasanna Kumar Mohapatra v. Gokuli Bhoi and Ors.
Appearances:
Petitioner: Advocate Dwarika Prasad Mohanty