M.P. Prakash vs M.V. Seetharam

H.G. Ramesh, J.—Aggrieved by the order passed on IA 10 in Ex. Case 10/2008 by the Addl. Civil Judge (Jr. Dvn.), Chikmagalur on 19.4.2014, the 3rd and 4th judgment debtors are before this Court in revision.

Heard the counsel for the petitioners and the 1st respondent/party in person.

Petitioners'' counsel has relied upon the judgment of the Apex Court in the case of Shew Bux Mohata and Others Vs. Bengal Breweries Ltd. and Others, to contend that when delivery of possession to decree holder is ordered and accepted, with the defendant remaining on the premises, it is held the decree is fully satisfied and it cannot again be executed. He has also relied upon the decision of this Court in the case of Mrs. Rosane Jerome D''souza Vs. Bhagvandas Gangaram Kamble by his legal representatives, to contend that a second application for delivery will not lie unless there has been no legal, complete and effectual delivery of possession earlier.

Respondent/party in person who is also an advocate and claims to be a doctor has relied upon the case of Rajendra Singh & Anr. Vs. Sathyavathi-2013 STPL (Web) 439 SC wherein it is held that the fruits of the decree should reach the party who obtains the same. The decree holder has not taken the actual possession of the property after demolishing the structure constructed therein. Relying on this judgment he sought to reopen the execution to take possession of the B & C schedule property.

On going through the ratio laid down in the case cited above and even in the judgment of this Court wherein it is held that second application for delivery of possession would arise in the context that there is no legal, complete and effective delivery of possession. In that view of the matter, there is no scope for reviewing the execution ordered by the Executing Court and that has to be upheld while dismissing the petition filed by the judgment debtor.

However, it is for the Executing Court to deliver actual possession to the respondent through court process. There need not be any separate order for possession ordered. The respondent can very well file an application for delivery of possession of the property, on that, it is for the Executing Court to issue delivery warrant through court process to the judgment debtors to hand over actual delivery of possession of the structure therein. Ordered accordingly.