IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 612 of 2009()
1. BALAKRISHNAN, S/O.RAMAN
... Petitioner
Vs
1. RAMACHANDRAN, S/O. CHAMUNNY,
... Respondent
2. SIVAN, S/O. RAMAN
3. IBRAHIM MOOSA, S/O.ABDUL RAHIMAN
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.NO.612 OF 2009 ()
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Dated this the 17th day of November, 2009
O R D E R
Petitioner is the defendant in O.S.No.41 of 1994 on the
file of the Munsiff Court, Alathur. The above suit was one for
specific performance which was decreed ex parte in favour of
the respondent/plaintiff. An application moved by the
petitioner/defendant for setting aside the ex parte decree had
been dismissed and further prosecution from that proceedings
by way of appeal was also unsuccessful. Plaintiff moved an
application on the trial side as I.A.No.328 of 2008 for delivery
of the property. The court below allowed that application
negativing the objections raised by the petitioner/defendant.
Propriety and correctness of that order is challenged in the
revision contending that delivery sought for by the
respondent/plaintiff is barred by limitation.
2. I heard the learned counsel for the petitioner. Having
CRP.612/09 2
regard to the submissions made and taking note of the facts
and circumstances presented, I find no notice to the
respondent is necessary, and hence it is dispensed with. I do
not find any merit in the submissions made by the learned
counsel for the petitioner. Challenge raised that the order
passed on the application moved by the respondent/plaintiff on
the trial side is a petition for execution of the decree, and so
much so, it is barred by the provisions of the Limitation Act,
has no merit at all. In view of the provisions of Sections 35
and 28 of the Specific Relief Act, decree for specific
performance of a contract for sale is in the nature of a
preliminary decree and the court does not become frunctus
officio after passing such decree. Sub Section (3) of Section
28 of the Specific Relief Act is a clear pointer that reliefs by
delivery or possession or separate possession of property
should be consequential to the passing of a decree for
specific performance of a contract to transfer an immovable
property. When a sale deed had been executed by the court
consequent to the decree passed in the suit for specific
performance, delivery of the property through court, is only
CRP.612/09 3
incidental or consequential and the plea of limitation
canvassed against the order passed thereof, is unworthy of
any merit. Revision is accordingly dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp