The court retains jurisdiction to direct delivery of possession under a decree for specific performance, and such applications can be filed within the same suit instead of requiring separate execution proceedings.

JUDGMENT :

1. This matter is taken up through hybrid mode.

2. Order dated 10^th July, 2006 (Annexure-1) passed by learned Civil Judge (Senior Division), 1^st Court, Cuttack in T.S. No.382 of 1993 is under challenge in this writ petition, whereby an application filed by the Petitioner praying inter alia to direct the Defendants to effect delivery of possession of the suit property through process of Court, has been rejected.

3. Mr. Mohanty, learned counsel for the Petitioner submits that T.S. No.382 of 1993 was filed for declaration of title in respect of suit property and to direct the Defendants to transfer the ownership of the suit land in favour of the Plaintiff along with other consequential reliefs. Although the prayer was made for declaration of title in respect of the suit property, but the suit is in fact for specific performance of contract, which was also observed by learned trial Court in its order dated 1^st March, 1995 by which the suit was disposed of ex parte. Ex Parte decree was drawn up on 10^th March, 1995.

4. Mr. Mohanty, learned counsel for the Petitioner drew attention of this Court to the opening lines of the ex parte order, which reads as under:

“Though the Plaintiff has filed the suit for declaration of his title in respect of the suit schedule land and for transfer of ownership by the defendants in favour of the plaintiff, it is a suit for specific performance of contract for execution of sale deed in favour of the Plaintiff by the defendants in respect of the suit schedule land……”

Thus, learned trial Court accepting the suit to be one for specific performance of contract, disposed of the same vide ex parte judgment dated 1^st March, 1995 (Annexure-2) with the following order:

“The suit is decreed ex parte against the defendants with costs. The defendants are directed….(torn) execute and register the sale deed in favour of the plaintiff on receipt of Rs.1,000/- from the plaintiff within two months hence, failing which the plaintiff may get the sale deed execute and register through the process of the court on depositing Rs.1,000/- on due notice to the defendants.”

4.1. Since the Defendant did not come forward to execute the sale deed in terms of the decree passed in the suit, the Plaintiff-Petitioner presented the sale deed along with challan of Rs.1,000/- for its registration. Accordingly, the sale deed was registered on 11^th September, 1998 under Annexure-4. But, delivery of possession was not given to the Plaintiff-Petitioner. Hence, he filed an application under Section 22 (3) of the Specific Relief Act, 1963 (for brevity ‘the Act’) in the same suit for delivery of possession. Learned trial Court in the impugned order under Annexure-1, refused to entertain the application on the ground that the ex parte decree was not a preliminary decree. Thus, institution of a final decree proceeding did not arise. It further held that direction for delivery of possession through the process of Court would amount to travel beyond the decree and thus, an application to draw a final decree would not be maintainable. In order to execute the decree, the Plaintiff is required to file an execution case. The Petitioner being aggrieved by the said order, has filed this writ petition.

5. Mr. Mohanty, learned counsel for the Plaintiff-Petitioner further submits that although the application was made under Section 22 (3) of the Act, but for all practical purposes, it should have been construed to be a petition under Section 28 (3) of the Act. Drawing attention to the provision under (3) of the Act, it is submitted that the Court, which passed a decree for specific performance of contract, does not loses its jurisdiction to direct for delivery of possession in a suit for specific performance of contract, if an applic