A suit for specific performance is filed when the seller fails to fulfil his obligation under the contract and there is a breach of contract. The buyer is a constraint to file a suit for specific performance in civil court. It is experienced that many times the seller/defendant chooses not to appear despite service of summons, and the matter is decreed exparte in favour of buyer/seller.
To get the possession of the party the buyer/plaintiff files an execution petition and then it surfaces that the possession is transferred to the third party who may be a bonafide purchaser. The third-party/bonafide purchaser may file objections before the executing civil court under order 21 rule 97 to 106 of Civil Procedure Code, 1908.
In order to avoid this exigency, the High Court of Delhi in a case titled Vateena Begum vs Shamim Zafar & Anr, EX.F.A. 9/2020, decided on 17.12.2020, HMJ Prathiba M. Singh mandated that:
“39. While entertaining suits for specific performance and granting interim relief, and specifically while passing ex parte decrees for specific performance, courts ought to make sure that the property is secured during the pendency of the suit and that the decree, which is passed, is not merely a paper decree. It would be advisable to ascertain as to who is in physical possession of the property, during the proceedings of a specific performance suit, in order to ensure that the complexities, of the kind that have arisen in the present case, do not arise in future.”
In view of this judgement, the Court now have to ascertain as to who is in physical possession of the property, during the proceedings of a specific performance suit.
The High Court further clarified that, when objections are filed by the objector under order 21 rule 97 to 106 of Civil Procedure Code, 1908 the executing court
has the discretion to frame issues and to conduct a trial in the matter? However, it is not in every case that the objections would have to be adjudicated after a trial or the Executing Court may decide against holding a trial if according to the court, the facts do not require the same. The discretion purely vests with the Executing Court.
Download Judgment Vateena Begum vs Shamim Zafar & Anr (DHC)
