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IN THE HIGH COURT OF ORISSA AT CUTTACK
K.R.MOHAPATRA
Prasanna Kumar Mohapatra – Appellant
Versus
Gokuli Bhoi – Respondent
| Table of Content |
|---|
| 1. challenge to the order of trial court (Para 2) |
| 2. specific performance and delivery of possession (Para 3 , 5) |
| 3. ex parte decree and execution (Para 4) |
| 4. procedural issues regarding execution (Para 6 , 7) |
JUDGMENT :
2. Order dated 10th July, 2006 (Annexure-1) passed by learned Civil Judge (Senior Division), 1st 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.
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:
Thus, learned trial Court accepting the suit to be one for specific performance of contract, disposed of the same vide ex parte judgment dated 1st March, 1995 (Annexure-2) with the following order:
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
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 executio....
The decree for specific performance inherently includes the right to possession, making separate requests for possession unnecessary unless specific circumstances require it.
The court established that relief of possession in specific performance cases can be claimed at any stage, including execution, and is not limited to the original decree.
The main legal point established in the judgment is that the relief of possession can be granted without being specifically claimed in a suit for specific performance, as per Section 22(2) of the Spe....
(1) In suit for specific performance, possession is inherent in such suit – Relief of possession is ancillary to decree for specific performance and need not be specifically claimed.(2) Procedural la....
A decree for specific performance implies an entitlement to possession, even if not explicitly stated, and the executing court must ensure this right is upheld.
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