The court emphasized that the court which passes the decree for specific performance retains control over the decree even after the decree has been passed. Ancillary relief could be obtained after the judgment in an action for specific performance. Questions arising between the parties where a decree for specific performance has been passed have to be determined by the court executing the decree and not by a separate suit.

JAYANT NATH, J.

1. This petition is filed under Article 227 of the Constitution of India seeking to impugn the orders of the Executing Court dated 16.05.2014, 05.07.2014 and 22.08.2014.

2. The case has a long chequered history starting from 1961. The controversy centers around a piece of land in the Abadi Zamroodpur, Delhi. The purchasers/respondent agreed to buy a parcel of land from the judgment debtors/petitioners on 13.01.1961. A suit for specific performance was instituted on 18.09.1961. The suit was decreed on 2.2.1973 in favour of one of the purchasers whereas for two purchasers who were minors, the suit was dismissed. Two appeals were filed before this court being RFA No. 52/1973 and RFA No. 80/1973 challenging the said decree dated 2.2.1973. These two RFAs were disposed of on 14.01.1985 passing a decree of specific performance in favour of the decree holders (respondent) including the two minors. The plea of the petitioners/judgment debtors were rejected. The petitioners were ordered to execute the sale deed within one month from that date failing which the trial court was to execute the conveyance deed at the cost of the petitioner. Unfortunately, enforcement of the said decree is yet to see the light of the day. In 1985, the petitioners filed another suit challenging the locus standi of execution of the agreement. A stay of the execution proceedings was granted in 2005. The said suit was thereafter dismissed. The first appeal and the second appeal which were filed were also dismissed. RSA No. 281/2007 was dismissed by this court on 03.05.2011 on account of which the execution petition in question was revived. Hence, the Executing court has now proceeded with the execution.

3. In the meantime, decree holder No.2 and 3 have entered into a settlement with the LRs of the judgment debtors/petitioners. Hence, now only one of the decree holders, namely, the respondent is pursing the execution petition.

4. By the impugned order dated 16.05.2014, the Executing Court noted that only decree holder No.1 who is entitled to 1/3rd share in the suit property is pursuing the case. Hence for full implementation of the decree, the court held that 1/3rd portion of the land has to be handed over to the decree holder/respondent. The Executing Court also passed a direction that the decree holder No. 1 is at liberty to choose any 1/3rd portion out of the suit property bearing municipal No. 26. measuring 817.9 sq. yards and he shall file a site plan along with an appropriate application showing his 1/3rd portion. Thereafter, the court shall take appropriate steps to execute his title documents in favour of the decree holder and shall also hand over possession of that portion to the decree holder. The petitioners filed a review petition against the said order dated 16.05.2014 which was dismissed on 05.07.2014. By order dated 22.08.2014, the decree holder was directed to file a draft title document with respect to the 1/3rd portion shown in the site plan which was filed by the decree holder/respondent. These three orders, namely, order dated 16.5.2014, order dated 5.7.2014 and order dated 22.8.2014 are challenged in this petition.

5. I have heard learned counsel for the parties.

6. Learned counsel for the petitioner has relied upon the judgments of the Supreme Court in the case of Jagdish Dutt and Another vs. Dharam Pal & Ors., AIR 1999 SC 1694 and A. Abdul Rashid Khan vs. P.A.K.A. Shahul Hamid and Ors., 2000 (10) SCC 636 and upon the judgment of Bombay High Court in the case of Vasudeo Dagadulal and Ors. Vs. Kankoochand Hirachand Visashrimali and Ors., AIR 1951 Bom. 226 to contend that there is no decree for partition passed in favour of the decree holder/respondent. It is urged that the mechanism of partition hence cannot be gone into by the executing court.

7. Learned counsel for the respondent, however, submits that partition can be done by the executing court. He also submits that reliance of the petitioners on the judgment of the Bom