Andhra HC (Pre-Telangana)
Balasa Sarada vs Talluri Anasuryamma (Died) And Ors. on 2 February, 2007
Equivalent citations: AIR2007AP130, 2007(2)ALD802, 2007(3)ALT4
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. This C.R.P. is directed against the order dated 6.7.2006, passed by the I Additional Senior Civil Judge, Nellore, rejecting the application in I.A.C.F. No. 9970 of 2006 in O.S. No. 12 of 1993, filed by the petitioner praying to execute regular sale deed in his favour on behalf of respondent Nos. 4 to 10.
2. The learned Counsel for the petitioner submitted that decree dated 12.5.2006, obtained by the petitioner in O.S. No. 127 of 1993, for execution of registered sale deed, can be got executed either by filing an application under Section 28(3)(a) of the Specific Relief Act, 1963 or by filing an execution petition under Order XXI, Rule 34 of the Code of Civil Procedure, 1908, but the Court below committed an error in holding that the application filed by the petitioner under Section 28(3)(a) of the Act is not maintainable and that his remedy is only to take steps under Order XXI, Rule 34 of the Code of Civil Procedure, 1908, and more so when the Court below does not lose control over the matter even after granting the decree. In support of this contention, he placed reliance upon the judgment of the Kerala High Court in Joseph v. Joseph .
3. Heard the learned Counsel for the petitioner and perused the order under revision.
4. The question that arises for consideration in this C.R.P. is whether an application to execute sale deed in favour of the decree holder is maintainable under Section 28(3)(a) of the Specific Relief Act, 1963?
5. The revision petitioner-plaintiff filed suit for specific performance of agreement of sale dated 26.11.1992. The suit was decreed by judgment and decree dated 12.5.2006. In the suit, the defendants, were directed to execute sale deed in terms of Ex. A 1 by receiving the balance sale consideration amount as per the sale deed, and in case the defendants fail to execute the document, the plaintiff shall deposit the balance sale consideration in the Court.
6. The present application, which is in the form of an I.A., in fact, is in the nature of execution petition, and it has been filed under the premise that the procedure contemplated under Order XXI, Rule 34 of the Code of Civil Procedure, 1908 and therefore, power under Section 28(3)(a) of the Specific Relief Act, can be exercised by the Court and execute the sale deed in favour of the plaintiff on behalf of defendant Nos. 4 to 10.
7. Before adverting to various other aspects, it is just and necessary to look into the scope of Section 28 of the Specific Relief Act. Section 28 empowers the Court to fix time limit for payment of money in a decree for specific performance, in case the decree holder fails to pay the amount within the time fixed by the Court, the defendant/vendor can apply to rescind the contract, on such application, the Court may order rescission/or it may pass further direction as Sub-section (4) bars a separate suit for any relief which can be claimed under Section 28 of the Act.
8. The language employed in Section 28 of the Specific Relief Act, indicates that the powers of the Court are discretionary and have to be exercised during the course of determining the suit and subsequent event relating to decree such as non-depositing of balance amount in terms of the decree, granting extension of time and other incidental reliefs in the suit, but it does not relate to the execution of the decree. Sub-section (3) of Section 28 empowers the Court to grant further relief of execution or proper conveyance or the delivery of possession etc. It is settled law that even in the absence of prayer for possession, the decree holder who had deposited the amount in tenns of the decree is entitled to get possession by virtue of Section 28(3) of the Specific Relief Act by making appropriate application. It appears that the present application is filed under Section 28(3) of the Specific Relief Act to execute the decree passed in favour of the plaintiff-decree holder. Section 28(3) of the Specific Relief Act, 1963 reads as follows:
(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in Sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:
(a) the execution of a proper conveyance or lease by the vendor or lessor.
(b) the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease.
9. It appears by relying on the language in the above section, the decree holder made application in the same suit seeking to execute the decree under Section 28(3) of the Specific Relief Act. The words "same suit" included in the section, enable the party to obtain incidental reliefs in the suit, but not relating to execution of the decree. Therefore, I am of the considered view that the words "same suit" mentioned in Section 28(3) of the Specific Relief Act, do not relate to execution. In the instant case, the trial Court already passed a decree in favour of the petitioner. It is not the case of the petitioner that he is seeking further reliefs under the present I.A. The relief sought in the present I.A., is execution of proper document in favour of the plaintiff. Therefore, Section 28(3) of the Specific Relief Act does not empower the Court to execute the decree. The decree holder has to approach the appropriate Court by filing a separate application to execute the decree as indicated by the trial Court.
10. In the above view of the matter, the I.A. itself is not maintainable as the relief sought in the I.A. is in the nature of executing the decree.
11. The C.R.P. has no merit, and the same is accordingly dismissed.