K. Kannan (Deceased) and Karthik vs Sathiyavani

Honourable Mr. Justice R.S. Ramanathan

The legal representative of the defendant in O.S. No. 132 of 2005 is the revision petitioner. The respondent filed the suit for specific

performance of agreement of sale dated 5.11.2004 in O.S. No. 132 of 2005 against the mother of the revision petitioner and the suit was decreed

on 28.6.2006 directing the respondent to pay Rs. 35,000/- to the mother of the revision petitioner as per agreement of sale dated 5.11.2004 and if

the defendant, namely mother of the revision petitioner failed to execute the sale deed, the plaintiff can approach the court to execute the sale deed

through court. As the defendant failed to receive sale consideration and execute the sale deed, the respondent filed E.P. No. 52 of 2008 for

execution of the sale deed and the sale deed was executed by the court on 17.8.2009. Thereafter, the decree holder/respondent filed E.A. No. 88

of 2011 for delivery of the property and along with that application, revision petitioner was impleaded as LR of the deceased defendant. He

entered appearance through his counsel and the case was adjourned for filing counter several times and on 30.9.2011, the learned counsel

appearing for the revision petitioner represented no instruction and therefore, the court below ordered delivery by 15.11.2011 and aggrieved by

the same, this revision petition is filed.

It is submitted by the learned counsel for the revision petitioner that the lower court without passing speaking order simply ordered delivery. The

order of the lower court is erroneous and when the learned counsel reported no instruction, without issuing notice to the revision petitioner, the

court below ought not to have ordered delivery.

I am unable to accept the contention of the learned counsel for the revision petitioner. Admittedly, the decree passed in O.S. No. 132 of 2005

was an exparte decree and the application to set aside the exparte decree was dismissed and the appeal filed against the same was also dismissed.

The defendant namely mother of the revision petitioner remained exparte during E.P.52 of 2008 filed by the respondent/decree-holder for

execution of sale deed and thereafter a sale deed was executed on 17.8.2009 and the same was also confirmed on 17.8.2009. Thereafter the

decree-holder filed E.A. No. 88 of 2007 for delivery of possession and in that petition also the revision petitioner appeared through his counsel

and later the counsel for the petitioner reported no instruction and hence the court has ordered delivery. As decree has become final and the sale

deed was also executed with the knowledge of the judgement-debtor, in my opinion, no defence is available for the judgement-debtor to resist the

application for delivery and considering the same, the court below has rightly ordered delivery.

Though the court below has not given a speaking order, considering the facts of the case, in my opinion there is no infirmity in the order passed

by the court below and I do not find any reason for interference with the order of the court below and the order of the court below is confirmed

and the revision petition is dismissed. No costs. Consequently the connected M.P. No. 1 of 2012 is also dismissed.