K.A. Joseph v. Prithvi Ram

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** CO/45/2023 K.A.Joseph Vs.

Prithivi Ram Mr. Gopala Binnu Kumar ... for the petitioner Mr. K. Vijay Kumar ... for the respondent November 23, 2023 [SR] Item No.14 1.

In the suit for specific performance, the learned Trial Court decreed the suit on contest against the defendant and the defendant was directed to execute and register the sale deed in favour of the plaintiff within the specified time. 2.

In view of the failure on the part of the defendant to execute and register the sale deed, an execution application was filed in which the court directed the Nazir to execute the deed of conveyance in favour of the plaintiff. 3.

The plaintiff on the basis of the said decree, became the owner of the property and while the decree holder attempted to take over the possession on the property in question, the decree holder was resisted.

4.

Under such circumstances, an application was filed by the petitioner.

5.

The learned counsel for the petitioner submits that since the respondent was not handing over the peaceful possession of the property in question, the decree holder made the prayer. However, the learned Trial Judge, instead of securing the delivery of possession in favour of the plaintiff, directed the mutation of the property in name of the plaintiff-decree holder and directed the Tehsildar to incorporate the name of the plaintiff in the record of rights in respect of the suit property and that basis drop the execution proceedings.

6.

In my view the order is not sustainable in law as it is the duty of the Court to ensure that the decree holder gets the fruits of the decree only upon delivery of possession. 7.

On such consideration, the impugned order dated 08th March, 2021 is hereby set aside. The execution proceeding is revived. The learned Civil Judge (Junior Division), 2nd Court Port Blair is directed to hear the execution application afresh and decide it in accordance with law.

8.

The civil revisional application is accordingly disposed of. There shall be no order as to costs. 9.

Urgent certified photostat copy of this order, if applied for, be supplied to the parties, upon compliance of usual formalities.

( Soumen Sen, J. )