Subhash B. Adi, J.
This writ petition is directed against the order dated 15.03.2008 in Execution petition No. 75/2008 on the file of the 11th Addl. City Civil Judge, Bangalore.
2. The undisputed facts leading to this Case are that, the petitioner has filed a suit in O.S.No 6277/1996 seeking specific performance of contract. The said suit was decreed by judgment and decree dated 22.3.2000 In pursuance of the said decree, the decree holder deposited the amount and thereafter filed an application for appointment of Commissioner to execute sale deed on behalf of the judgment debtors. The sale deed was executed on 21.6.2002 Thereafter the decree holder requested the Executing Court to deliver possession. However, the said application was rejected. He filed onemore application under Section 152 seeking amendment and correction of decree. The said application was also rejected, against which, he filed a Writ Petition hi W.P.No 25425/2005. This Court by order dated 27.11.2007 after hearing Learned Counsel for both sides observed that there was no need for the plaintiff to approach Trial Court for amendment of decree under Section 152 of CPC in view of obtaining a decree for specific performance, as the plaintiff will automatically get possession of the suit property after the sale deed is executed in his favour, accordingly it is held that the Learned Judge has rightly rejected the application.
3. This Court had disposed of writ petition with an observation that the application under Section 152 CPC for amendment and correction of the decree is unnecessary in view of the sale deed executed by the Executing Court in favour of the decree holder. In view of the observation made by this Court, the petitioner sought for delivery of possession by filing another application in Ex.No 75/2008 inter alia stating that from the date of the order in W.P No. 25425/2005, the petition is within two years and notice be dispensed with. Accordingly, delivery warrant was issued for execution of the decree with police help by Executing Court on 11.2.2008 On 25.2.2008, the Court ameen went to the spot and executed decree by drawing mahazar of deli very of possession in favour of decree holder. Thereafter on 29.2.2008, he reported to Executing Court that decree of delivery of possession has been executed and the Executing Court records the said submission.
4. The judgment debtor there after filed an application under Section 151 of CPC inter alia seeking a direction to decree holder to put up construction demolished illegally and for possession and also for contesting the proceedings. The said application has been allowed by Executing Court inter alia observing that judgment debtor had filed O.S 16020/2006 against the decree holder and in the said suit, they have obtained an order of status quo on 29.8.2006 It was extended from time to time. However, inadvertently the interim order of status quo was not extended from 9.2.2008 till 28.2.2008 Having so recorded, the Executing Court allowed the application on the ground that judgment debtors have been wrongly dispossessed and directed the decree holder to restore the actual possession of the schedule property and directed to put up the construction as it was existed then prior to the illegal demolition within one month failing which the judgment debtors are entitled to construct the same on at the cost of the decree holder.
5. Learned Counsel for the petitioner submits that the decree for specific performance of contract has not been questioned and that has become final and the sale deed has been executed by the Executing Court. Thereafter, this Court has clarified that once there is a decree for specific performance of contract, there is no need to seek amendment of the decree for possession. It was in pursuance of the same, an application was moved for execution of deliver of possession. Admittedly, in the suit filed by the judgment debtors as on the date of issue of delivery warrant on 11.2.2008, there was no interim order.
The interim order was again granted on 28.2.2008 By 28.2.2008, decree was executed. Despite having noticed these facts, the Executing Court without any justification has issued direction. The Learned Counsel submitted that once there is a decree for specific performance of contract and there is a sale deed executed by the judgment debtors through the Commissioner of Court, transfer of property has been affected. Despite all these facts, the Executing Court on extraneous circumstances issued a direction.
6. Learned Counsel for the respondents-judgment debtors submitted that as against judgment and decree, a miscellaneous proceeding has been initiated by legal heirs of original judgment debtor. They have also filed O.S No. 16020/2006 in which they had obtained an order of status quo and which was continued upto 9.1.2008 However, inadvertently the said interim order was not extended and the application for extension of interim order was pending. Subsequently, on 28.2.2008, the interim order was extended. In these circumstances, the Executing Court has rightly held that the order of delivery of possession is wrongly executed. He also submitted that the order of this Court is not a decree and not executable within the meaning of sub-Section 2 of Section 2 of CPC.
7. Learned Counsel relied on judgment of the Apex Court in the matter of Diwan Brothers v. Central Bank of India, Bombay and Others . 1976 SC 1503.. He also relied on decision of the Apex Court in the matter of Radhey Shyam and Another v. Chhabi Nath and Others . 2009 AIR SCW 4006. and submitted that Apex Court has doubted the correctness of decision in the matter of Surya Dev Rai v. Ram Chander Rai and Others . 2003 AIR SCW 3872. which is now referred to larger bench. In these circumstances, this Court is not vested with power under Article 227 of Constitution of India to vary the orders of Civil Court except in case where there is a manifest injustice is caused.
8. From the undisputed facts stated above, it is clear that the petitioner is a decree holder for specific performance of contract. The decree is culminated in the execution of the sale deed in his favour. It is not disputed that the writ petition was disposed of by this Court after hearing Learned Counsel for petitioner as well as respondent clarifying the decree for specific performance of contract includes delivery of possession and there is no need for separate amendment of the decree for possession. This order has not been in questioned by the respondent judgment debtors.
9. The respondents have also not disputed that as on the date of delivery of possession, there was no interim order as against decree holder in the suit filed by them. The fact is also referred in the impugned order at paragraph 24, the Executing Court records that the interim order was extended up to 9.1.2008 and there was no interim order as on 9.1.2008 till 28.2.2008
10. If there is no interim order restraining the decree holder from executing the decree, it cannot be said that the decree holder is prevented from executing decree as per the decree. This Court has not stated as to whether the order is decree or not. It has only stated, that after granting of decree for specific performance of contract by, virtue of execution of sale deed, the property stands transferred and in pursuance of which the decree holder is entitled for possession. In the light of the clarification given by this Court, the decree holder sought for delivery of possession. This Court has not modified the decree or granted any fresh order.
11. It is unfortunate that the Executing Court after referring the dates and having found that there was no interim order in favour of the judgment debtor has still issued the direction. If the decree is lawfully executed, there is no reason for the Executing Court to set aside the order of execution for delivery of possession and to issue a direction to the decree holder to deliver the possession and construct the structure. In my opinion, the Executing Court having found that the order of status quo was not in existence as on the date of issue of delivery warrant and also on the date of delivery of possession, the decree holder was not prevented in law and rightly the decree has been executed. Filing suit or miscellaneous case itself does not prevent the Executing Court from executing the decree. There is admittedly no dispute as to the decree granted in favour of the decree holder. It is also not in dispute that the Executing Court has executed sale deed in favour of the decree holder, despite the sale deed, and after the deliveryof possession the Executing Court has passed the impugned order for redelivery of possession to the judgment debtor that to by constructing the structure, that to on an application under Section 151 of CPC. Even in case of execution decree which is set aside by the Appellate Court at later stage; the judgment debtor requires to file an application under Section 144 for restoration of possession. But in this case, the decree is not reserved nor decree is executed in violation of interim order, still the decree holder is directed to deliver possession to judgment debtor. This only shows that the Executing Court has either failed to consider the relevant procedure or has acted in derogance to the provisions of law and procedure. It must also be mentioned, that obtaining of decree is much easier than the getting of the fruits of the decree. On account of irrelevant procedure the execution proceedings are made more complicated.
12. In these circumstances, I have no other alternate except to quash the impugned order. The order impugned suffers from manifest illegality and gross injustice is caused to the decree holder after having passed several years. As such, I find that writ petition requires to be allowed. Accordingly, writ petition is allowed. The impugned order is set aside.
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