IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 RP.No. 1162 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN RSA.766/2009 Dated 12/08/2009 .................... REVIEW PETITIONER: ---------------------- A.VIJAYAN, V.R. SADANAM, KALLIYOOR VILLAGE, PALLICHAL P.O., THIRUVANANTHAPURAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT: ------------------- J.DEVARATNAM, KARKKATTUVILA PUTHENVEEDU, KALLIYOOR VILLAGE, PALLICHAL P.O., THIRUVANANTHAPURAM. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.P No. 1162 of 2009 in R.S.A. No.766 of 2009 ---------------------------------------- Dated this the 11th day of December, 2009 ORDER The appellant in R.S.A. No.766/2009 is the review petitioner. The counsel for the review petitioner contended that the judgment passed in the second appeal, is liable to be reviewed for the reason that the same is not passed on equitable consideration and relief cannot be claimed as a matter of right and the said judgment is not according with the provisions of Section 20 of the Specific Relief Act. Several other grounds are also raised in the review petition which are only repetition of the grounds raised in the second appeal. The trial court after examining the evidence on record decided the question as to whether the respondent/plaintiff is entitled to a decree of specific performance of contract dated 1.5.1995. This is a case where the review petitioner/defendant admitted the execution of the Ext.A1agreement The courts below among other things, also noticed the fact that the non- production of the Original sale deed after clearing the loan amount from the Bank itself would go to show that the review petitioner/defendant had no intention to perform his part of the contract. In spite of repeated demands the petitioner/defendant did not care to execute the document by performing his part of the contract after receiving Rs.20,500/- as advance money . The trial court held that this -2- is a fit case where the respondent/plaintiff is entitled to a decree for specific performance. The findings are confirmed by the lower appellate court. Learned counsel contended that the relief of specific performance is purely discretionary, plaintiff is not entitled to the equitable relief and the said question was not considered by the courts below. 2. On the basis of the said contention raised in the review petition, again, I have gone through the pleadings in the written statement and the memorandum of first appeal filed by the defendant/review petitioner. No such pleading was raised before the court below . In the Second appeal also the review petitioner/defendant did not plead that the respondent/plaintiff shall not be granted a decree for specific performance of contract on equitable consideration. Hence the grounds raised in this review petition cannot be entertained . The counsel for the review petitioner is unable to point out any illegality in the application of Section 20 of the Specific Relief Act. It is true that the relief of specific performance is a discretionary remedy The said relief can be granted by a court of law only on judicial consideration. There is no scope for reviewing the judgment and decree passed by this Court in the second appeal. I find that no grounds are made out by the review petitioner/defendant to review the judgment and decree passed in the second appeal. The review petition fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.P No. 1162 of 2009 in R.S.A. No.766 of 2009 ---------------------------- ORDER 11th December, 2009