IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 CRP.No. 612 of 2009() --------------------- AGAINST THE ORDER IN IA 328/2008 IN OS.41/1994 of MUNSIFF COURT, ALATHUR .................... REVN. PETITIONER(S)/RESPONDENT NO.1/DEFENDANT NO.1: -------------------------------- BALAKRISHNAN, S/O.RAMAN PUTHENPURA HOUSE, PANNIANKAA, ALATHUR TALUK PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/PETITIONER AND RESPONDENTS NOS.2 & 3/PLAINTIFF AND DEFENDANTS NOS.2 AND 3: --------------- 1. RAMACHANDRAN, S/O. CHAMUNNY, ARIYAKKODU HOUSE, VEMBALLOOR AMSOM, MANJALOOR VILLAGE,ALATHUR TALUK. 2. SIVAN, S/O. RAMAN AYAKKAD AMSOM, PANNIANKARA, ALATHUR TALUK. 3. IBRAHIM MOOSA, S/O.ABDUL RAHIMAN AYAKKAD AMSOM,PANNIANKARA, ALATHUR TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.612 OF 2009 () ----------------------------------- Dated this the 17th day of November, 2009 O R D E R Petitioner is the defendant in O.S.No.41 of 1994 on the file of the Munsiff Court, Alathur. The above suit was one for specific performance which was decreed ex parte in favour of the respondent/plaintiff. An application moved by the petitioner/defendant for setting aside the ex parte decree had been dismissed and further prosecution from that proceedings by way of appeal was also unsuccessful. Plaintiff moved an application on the trial side as I.A.No.328 of 2008 for delivery of the property. The court below allowed that application negativing the objections raised by the petitioner/defendant. Propriety and correctness of that order is challenged in the revision contending that delivery sought for by the respondent/plaintiff is barred by limitation. 2. I heard the learned counsel for the petitioner. Having CRP.612/09 2 regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary, and hence it is dispensed with. I do not find any merit in the submissions made by the learned counsel for the petitioner. Challenge raised that the order passed on the application moved by the respondent/plaintiff on the trial side is a petition for execution of the decree, and so much so, it is barred by the provisions of the Limitation Act, has no merit at all. In view of the provisions of Sections 35 and 28 of the Specific Relief Act, decree for specific performance of a contract for sale is in the nature of a preliminary decree and the court does not become frunctus officio after passing such decree. Sub Section (3) of Section 28 of the Specific Relief Act is a clear pointer that reliefs by delivery or possession or separate possession of property should be consequential to the passing of a decree for specific performance of a contract to transfer an immovable property. When a sale deed had been executed by the court consequent to the decree passed in the suit for specific performance, delivery of the property through court, is only CRP.612/09 3 incidental or consequential and the plea of limitation canvassed against the order passed thereof, is unworthy of any merit. Revision is accordingly dismissed. S.S.SATHEESACHANDRAN JUDGE prp