The central legal point established in the judgment is the affirmation of a decree for specific performance of a contract based on the defendant's share in the suit property and the plaintiff's concession to the decree on payment of consideration.

R.K. Merathia, J.

1. This writ petition has been filed against the order dated 22.9.2005 passed by Subordinate Judge V. Ranchi dismissing the Misc. Case No. 77 of 1985 registered on the objection filed by the judgment debtors-Petitioners under Section 47 of the Code of Civil Procedure.

2. Mr. P.K. Prasad, learned senior counsel appearing for the Petitioners challenged the impugned order on the various grounds whereas Mr. Amar Kumar Sinha, learned Counsel for the Respondent supported it.

3. It appears that Title Suit No. 220 of 1982 was filed by the Respondent for specific performance of the contract against the Petitioners. Suit was decreed. The Respondent filed execution case being Execution Case No. 70 of 1984 in which the objection in question was filed by the Petitioner which was registered as Misc. Case No. 77 of 1985. The Petitioners also filed appeal in this Court against the said judgment and decree, which was registered as First Appeal No. 42 of 1984(R). The appeal was allowed against which an appeal being L.P.A. No. 42 of 1999(R) was filed by the Respondent. By the judgment dated 7.8.1987, the L.P.A. was allowed and the judgment and decree passed by the trial Court was restored and affirmed after hearing the parties fully. In the objection petition in question, filed on behalf of the Petitioners in 1985, it was said that the partition suit was pending. But in the said judgment passed in the L.P.A., it was noted that--

There is no dispute that there was a partition between the Defendant and his co-sharers and by virtue of the decree passed in the partition suit. The Defendant-Respondent was allotted 1/5th share in the suit proportion.

It was further observed as follows:

Having regard to the admitted facts that in the partition the Defendant-Respondent has been allotted 1/5th share and there was concession on the part of the Plaintiff to get a decree for specific performance on payment of some consideration, I am of the view that the learned trial Court was fully justified in granting the decree for specific performance, in respect of 1/5th share of the Defendant-Respondent in the suit property.

4. It was said in the trial Court on behalf of the Respondent that she was in possession of the shop in question in part performance of the contract. On this ground the Petitioners cannot resist recovery of possession in execution of decree through the process of law.

5. The learned Court below after considering the respective cases of the parties in detail and on taking into consideration relevant aspects of the matter has rightly rejected the said miscellaneous case. No evidences were required to be recorded by the executing Court as the parties fully contested the first appeal and then the letters patent appeal in which the judgment and decree passed by the trial Court was affirmed by this Court.

6. In the facts and circumstances of the case, no grounds are made out for interfering with the impugned order in exercise of the powers of this Court under Article 227 of the Constitution of India. Accordingly, this writ petition is dismissed. However, no cost.

7. Since this execution case is pending since 1984, the executing Court is directed to get the decree executed expeditiously.

Petition dismissed.