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1985 DIGILAW 65 (PAT)

Most. Ram Sundari Devi v. Satban Singh

1985-02-22

B.P.JHA

body1985
Judgment B P. Jha, J. This civil revision petition has been filed against an order dated 24th June, 1977. 2. By the impugned order, the court below refuted to grant delivery of possession on the ground that the decree did not mention about the delivery of possession of the suit land. 3. In this connection, learned Counsel for the petitioners has relied on a Division Bench decision of this Court in Atal Bihari Acharya v. Barada Prasad Banerji. In that case, the Division Bench has held that if there is no prayer for delivery of possession either in the decree, the executing court is not debarred from granting delivery of possession of the suit property to the plaintiff. In the present case, there is a prayer in the plaint for delivery of possession of the suit property. 4. It was a suit for specific performance of contract. Defendant no. 1 was directed to execute a sale deed in respect of the subject matter of the suit property, Defendant no. 1 did not executed the sale deed in favour of the plaintiffs-petitioners. In the execution petition it was prayed that delivery of possession can be given to the plaintiffs-petitioners, It was refused by the executing court on the ground that the decree did not mention about the delivery of possession of the suit property. 5, Learned Counsel for the opposite party on the other hand, relies on a decision of the Supreme Court in Managing Director (M.I.G) Hindustan Aeronautics Ltd and another, Balanagar vs. Ajit Prasad Tarway. In that case, the first appellate court directed the defendant to refrain from proceeding with the enquiry till the decision. The order of suspension was not stayed. In revision the High Court stayed the operation of suspension order and the proceedings in the enquiry. In this circumstance the Supreme Court held that the High Court had no jurisdiction to interfere with the order in question of this case 6. Hence, relying on the Division Bench decision of this Court (supra). I hold that the court has enough power to give delivery of possession to the plaintiffs-petitioners. although the decree does not mention about the delivery of possession. Hence. I direct the executing court to give delivery of possession of the suit property as prayed by the plaintiffs-petitioners in the execution petition in accordance with law. I hold that the court has enough power to give delivery of possession to the plaintiffs-petitioners. although the decree does not mention about the delivery of possession. Hence. I direct the executing court to give delivery of possession of the suit property as prayed by the plaintiffs-petitioners in the execution petition in accordance with law. In my opinion, the court below committed a jurisdiction error and exercised the Jurisdiction which was not vested in it by law. In my opinion, the court below acted illegally. The order of the executing court will also occasion a failure of justice, Hence, I interfere with the order in question. 7. To the result, the petition is allowed and the order dated 24th June, 1977, is set a side. The parties shall bear their own costs. Application allowed.