Alamengada Muddappa and ors. Vs. Alamengada Kuttappa and ors. - Court Judgment

Excerpt:
- [ subhash b. adi, j.] specific relief act, 1963 - suit for specific performance of contract - decretal of - execution of registered sale deed by the executing court in favour of the decree holder - delivery of possession - application filed by the judgment debtor - direction sought to the decree holder to put up construction demolished illegally and for possession - grant of prayer in favour of judgment debtor - challenge to - held, 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. - 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. -further held, 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 delivery of 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 c.p.c. - even in case of execution of 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. - impugned order is set aside - civil procedure code, 1908 - section 151 and section 144 - discussed. (para 11) writ petition is allowed. order(a) appeal is devoid of merit and hence, stands dismissed, subject to the observations made supra.(b) case of both parties is kept open for consideration by the trial court, on all the issues, except issue no. 7.(c) the trial court is directed to take the suit on its board on 21.6.2010 and proceed further in the matter. learned counsel appearing for the parties have undertaken to keep their clients present before the trial court on 21.6.2010 to receive the orders.(d) trial court is hereby directed to dispose of the suit expeditiously and at rate within one year period from the date of first appearance of the parties.in the facts and circumstances of the case, parties are directed to bear their respective costs.

Judgment:
ORDER

(a) Appeal is devoid of merit and hence, stands dismissed, subject to the observations made supra.

(b) Case of both parties is kept open for consideration by the Trial Court, on all the issues, except issue No. 7.

(c) The Trial Court is directed to take the suit on its board on 21.6.2010 and proceed further in the matter. Learned Counsel appearing for the parties have undertaken to keep their clients present before the Trial Court on 21.6.2010 to receive the orders.

(d) Trial Court is hereby directed to dispose of the suit expeditiously and at rate within one year period from the date of first appearance of the parties.

In the facts and circumstances of the case, parties are directed to bear their respective costs.