M.N. KRISHNAN, J.

1. The CRP is preferred against the order of the Subordinate Judge, Thiruvalla in E.P.56/03 in O.S.144/01. W.P.C 29596/07 is filed by the writ petitioner therein contending that for the implementation of the decree for specific performance the methodology to be adopted is to move an application on the original side under S.28(3) of the Specific Relief Act and that the execution petition is not maintainable. The brief facts necessary for the disposal of the matter is stated as follows.

2. The execution petition is one for executing a decree in O.S.144/01. As per the decree dated 12.8.03, a decree for specific performance was granted. The first defendant died after the decree and the 2nd defendant died before the decree. The additional judgment debtors 3 to 6 were then impleaded as the legal representatives of the deceased first judgment debtor. The said additional judgment debtors had raised two fold contentions, one is to the effect that an execution petition is not maintainable for enforcing a decree for specific performance and secondly that the property is not properly identifiable and therefore the property cannot be delivered to. The Court below after examination of the evidence available in the case held that the property is identifiable and therefore held that the decree holder is entitled to get execution, allowed in his favour as per the decree passed in this case.

3. The first point to be considered in both these cases are regarding the maintainability of an execution petition. The learned counsel for the revision petitioner as well as the writ petitioner strongly contends before me that under S. 28(3) of the Specific Relief Act the methodology of implementation of the decree of the Court for specific performance is enunciated and therefore if at all any remedy is there, it is to move the Court which passed the decree on the original side under S. 28(3) for implementation of the decree.

4. On the other hand the learned counsel for the decree holder would contend before me that S. 28(3) does not completely bar the remedy by way of execution and as far as Order 21 R.32 and 34 are concerned it is still retained in the CPC intact and therefore execution can be done by the same Court.

5. The learned counsel for the writ petitioner had drawn my attention to the decision of the Apex Court reported in Ramankutty Guptan v. Avara (1994 (1) KLT 453). The facts of the case would reveal that the appellant/judgment debtor filed a petition in the executing Court to rescind the contract dated 16th January, 1976 on the plea that the plaintiff had committed default in depositing the balance consideration of Rs.4,351/-. The Apex Court therein held that the direction to rescind the contract under the Specific Relief Act is covered by S.28(1) of the Act and an application on that behalf has to be made in the same Court in which the decree is made. Therefore, the Court held that in such a case the party has to move an application on the original side of the suit for rescission of the contract and held accordingly. So far as S. 28(3) is concerned it is correct to state that the party can move an application under S. 28(3) for satisfaction of the right mentioned in that sub section. The difference between S.28(1) and 28(3) has also to be borne in mind. S. 28(1) specifically deal with a situation of rescission of contract. It is not provided elsewhere in any other statute and therefore it has to be held that S. 28(1) has to be understood by the provisions in that clause itself which indicates that it must be done in the very same suit.

6. The next decision referred to by the learned counsel is that the decision reported in Joseph v. Joseph (1997 (1) KLT 663). It was a case where an application was filed under S.28(3). It was contended that it has to be filed on the execution side. Then the Court held that the application is maintainable in the same suit under S.28(3) of the Act and therefore it has to be tried in that w