1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. LPA No.17/2008 in Writ Petition No.1890/2008 (Marotrao Daulatrao Chandurkar .vs. Mrs. Shobha Purushottam Bhute) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders ======================================= Mr. S. D. Deshpande, Advocate for the Appellant. Mr. A.S. Kilor, Advocate for the Respondent. .......... CORAM : K.J. ROHEE, & R.C. CHAVAN, JJ DATED : JANUARY 22, 2008 1. The appellant is the judgment- debtor in the decree passed in Civil Suit No. 58/1980 decided on 30.9.1983. The suit for specific performance of agreement of sale of the house was decreed against the appellant and he was directed to execute sale deed in favour of the original plaintiff and on his failure to do so, it would be executed by the Court. It seems that the said decree became final. 2. In 2006, execution proceedings in 2 respect of the said decree started. The appellant objected the execution of decree on two grounds, first that the decree is silent about delivery of possession and secondly the draft of the sale deed submitted by the original plaintiff was not served on the appellant as required under Order 21 Rule 34 (2) of C.P.C. The Executing Court negatived both the objections by order dated 20.4.2007 and proceeded with the execution. The appellant challenged the said order by preferring W.P.No. 1890/2007. By order dated 14.12.2007 the learned Single Judge dismissed the writ petition. The said order is under challenge before us. 3. We have heard the learned counsel for the appellant as well as the respondent. 4. It is true that the judgment passed on 30.9.1983 does not direct the appellant/judgment-debtor to deliver possession of the suit house to the decree holder. However, the order opens with the words “the suit for specific performance of contract of sale of the suit property is decreed with costs.” The learned Single Judge has dealt with this aspect in details in the impugned order and came to the 3 conclusion that the relief of possession can be claimed even during execution proceedings wherein decree for specific performance of contract has been granted. We see no illegality in the said reason. 5. So far as another objection is concerned, it is true that the draft sale deed was not served on the appellant/judgment- debtor though sub-rule (2) of Rule 34 of Order 21 CPC requires the Executing Court to serve such draft. However, in the instant case there is no whisper by the appellant about any error in the sale deed. The appellant/judgment debtor has also not shown as to how prejudice has been caused to him for non-compliance of sub-rule (2) of Rule 34 of Order 21 of CPC. The learned Single Judge has dealt with this aspect in the impugned order. We find no illegality in the impugned order. There is no substance in the LPA. The same is, therefore, dismissed. JUDGE JUDGE halwai