IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 FAO.No. 66 OF 2008() -------------------- I.A. 177/2008 IN I.A. 3956 /06 IN OS.213/1985 OF PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANTS/PETITIONERS/DEFENDANTS 1. K.YASODA, W/O.LATE A.KRISHNAN, THARAKAR LINE, KIZHAKKUMPURATHU, KOPPAM AMSOM DESOM, PALAKKAD TALUK. 2. SUBHASH, S/O.YASODA, THARAKAR LINE, KIZHAKKUMPURATHU, KOPPAM AMSOM DESOM, PALAKKAD TALUK. 3. SURESH BABU, S/O.YASODA, THARAKAR LINE, KIZHAKKUMPURATHU, KOPPAM AMSOM DESOM, PALAKKAD TALUK. BY ADV. RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE SRI.J.R.PREM NAVAZ SRI.MANU TOM RESPONDENTS/RESPONDENTS/ PLAINTIFFS 1. VIJAYALAKSHMI, WIFE OF LATE K.S.KRISHNAN, THARAKAR LANE, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD DIST. 2. SAJITHA, D/O.VIJAYALAKSHMI, THARAKKAR LANE, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD DIST. 3. SUNITHA, D/O.VIJAYALAKSHMI, THARAKKAR LANE, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD DIST. 3F.A.O. 66/2008 2 4. SIVAKUMAR SAJINI, S/O.VIJAYALAKSHMI, THARAKKAR LANE, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD DIST. R 5. SANDHYA, D/O.VIJAYALAKSHMI, THARAKKAR LANE, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD DIST. 6. SUCHITHRA, D/O.VIJAYALAKSHMI, THARAKKAR LANE, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD DIST. BY ADV. KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANAKANNAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14.3.2008, THE COURT ON 02/04/2008, DELIVERED THE FOLLOWING: P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. NO. 66 OF 2008 = = = = = = = = = = = = = = = = DATED THIS, THE DAY OF 2008. J U D G M E N T Raman, J. This is an appeal directed against the order passed in I.A. 177/2008 in I.A. 3956/2006 in O.S. No. 213/1985 on the file of the Sub Court, Palakkad. The appellants are the defendants in the above said suit. 2. The suit was for specific performance which was decreed by the court below. I.A. 1616/2003 was thereafter filed by the plaintiff to get the document executed through court and it was executed on 16.10.2006. Thereafter, I.A. 3956/2006 was filed by the plaintiff/decree holder for delivery of the property invoking the provisions of Section 28 of the Specific Relief Act read with Order XXI Rule 35 of the Code of Civil Procedure. The court below, by its order dated 8.1.2008, allowed the said application and ordered delivery. Thereafter, the present application was filed seeking to cancel the delivery of the property, which was dismissed as per order dated 20.2.2008. 3. According to the appellants,their counsel could not appear before the court at the time when the order was passed on 8.1.2008 as he had to FAO 66/2008 :2: appear before another court in another case. They had lawful and legal contentions in the case against delivery of the property and therefore, the order is to be set aside. 4. The respondents filed counter affidavit contending that there is no bona fides in the contention now raised. The suit O.S. 213/1985 was originally dismissed but it was reversed in A.S. 207/1987, by this Court. Against that, AFA 28/1993 was filed by the defendants which was dismissed and the judgment in A.S. 207/1987 was confirmed. Later, the appellant approached the apex court by filing a Special Leave Petition which was also dismissed. Thus, the decree has become final. Actually, there is no right for the petitioners and all the rights of the petitioners and their representatives were assigned in favour of the plaintiff in the suit and now finally the delivery application is filed and there is no ground to stay the same. Accordingly, the application was dismissed. 5. The plaintiffs/decree holders in the suit filed I.A. No. 441/2008 seeking police aid to the Amin for taking delivery of the property, which was allowed. 6. We heard the submissions on either side. It is true that normally, when it is submitted that the counsel could not appear on the appointed day when the court passed an order to deliver the property because he was FAO 66/2008 :3: engaged in another court, this Could would have considered a further opportunity to present his case. But in the factual situation, we thought that for a technical reason, we need not remit the case to the trial court rather we hear the contention on merits. In that view, we heard both sides on the objection of the appellants against the delivery application. 7. According to the learned Senior Counsel Sri. Ramakumar, no execution petition as such is filed but only an interlocutory application is filed. But we are not impressed with this argument since in a suit for specific performance it is not necessary to file a separate execution application since the court which passed the decree itself can execute the same and the further proceeding in execution of the decree passed could be obtained by filing an interim application invoking the power under Section 28 of the Specific Relief Act. It is true that a petition under order 21 Rule 32 or 34 is not barred by Section 28. This position is made clear in Joseph v. Joseph (1997 (1) KLT 663) wherein it is held that an application under Section 28(3) of the Specific Relief Act is equally maintainable and no separate execution petition need be filed. The same view has been expressed by the apex court in Ramankutty Guptan v. Avara ((1994) 2 SCC 642) and in V.S. Palanichamy Chettiar Firm v. FAO 66/2008 :4: C.Alagappan ((1999) 4 SCC 702) . 8. Thus, the point of law is well settled by the decision of the apex court as well as this court. We do not find any merit in the contention raised by the appellants/ petitioners. 9. As a matter of fact, the appellants had filed yet another suit as O.S. 123/2004 before the Sub Court, Palakkad, raising similar contentions as raised in the counter affidavit in the present proceeding. Ext.R4(a) is the copy of the plaint in the said suit. The interim injunction sought for was dismissed and nothing was done thereafter. The decree in this case was passed as early as in 1992 but still delivery could not be taken because of the appeal and further appeal filed by the defendants and ultimately, the apex court also dismissed the special leave petition and hence when the plaintiff sought to execute the decree and delivery of the property, we do not find any illegality in the order passed by the court below delivering the property over-ruling the contentions of the appellants herein. We find no merits in the appeal. The same is liable to be dismissed. 10. However, learned Senior Counsel Sri. Ramakumar, appearing for the appellant, sought a reasonable time to vacate the premises in case his contentions are not accepted by us. Considering the fact that the appellants are residing in the same building, we grant three months time to the FAO 66/2008 :5: appellants to vacate the premises. Delivery proceedings will continue on the expiry of three months period in case the premises is not surrendered in the meantime. Subject to the above observation, the appeal is dismissed. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-