Bombay High Court
Baliram S/O Tulshiram Kakde vs Raghunath S/O Bhagwanji Hood on 26 February, 2020
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
927.wp.5129.18 (1) Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5129 OF 2018
Baliram S/o Tulsiram Kakde
Aged 55 years, Occupation : Service,
R/o Kanhan, Tah. Parshivni, PETITIONER
District : Nagpur. .. (Ori. def.)
(Ori. J.D.R.)
ON R.A.
.....VERSUS.....
Raghunath S/o Bhagwanji Hood
Aged 65 years, Occupation: Retired,
R/o Tekadi, Parseoini Tahsil, .. RESPONDENT
District: Nagpur. (Ori.Plff)
(Ori.D.H.)
Shri A. S. Shukla, Advocate for petitioner.
Shri Kuldeep P. Mahalle, Advocate for respondent.
CORAM : AVINASH G. GHAROTE, J.
DATE : 26TH FEBRUARY, 2020.
ORAL JUDGMENT
1. Heard.
Rule. Rule made returnable forthwith. The matter is heard finally with the consent of the learned counsel for the parties.
2. The present petition challenges the order dated 13.06.2018 passed by the executing Court in RD No.38 of 2015, whereby the application filed by the decree - holder for issuance of warrant of possession in respect of the subject property, has been ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (2) Judgment allowed, in light of the fact, that the sale deed of the subject property has already been executed and registered in favour of the decree - holder on 07.06.2018 consequent to a decree for specific performance dated 12.10.2010 passed in RCS No.11 of 2008 (Old Spl. C.S. No. 239 of 1995), which decree has attained finality, the first appeal against the same being RCA No.512 of 2010 having been dismissed on 05.07.2014 and thereafter Second Appeal No.472 of 2016 also having been dismissed on 13.12.2016.
3. It is contended by Mr. Shukla, learned counsel for the petitioner that the decree in RCS No.11/2008 dated 12.10.2010 did not contain any direction to deliver possession of the suit property. He further submits that such direction, was neither sought for, nor granted in the first appeal as well as the second appeal. He therefore, submits in absence of such a direction in the judgment and decree dated 12.10.2010 it was not permissible for the executing Court to have granted the application for issuance of warrant of possession of the suit property. He places reliance upon Section 22 of the Specific Relief Act and judgment of the Hon'ble Apex Court in the case of Adcon Electronics Pvt. Ltd. vs. Daulat and another (2001) 7 SCC 698 and specifically Paras 16 and 17 to contend that in light of the language of Section 22 of the Specific Relief Act 1963, in case the decree initially granted was not for possession, the relief for possession could only be obtained by way of an application under Section 22 (1)(a) of the Specific Relief Act. He further places reliance upon Sub section 2 of Section 22 of the Specific Relief Act, to contend that a prohibition is imposed in ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (3) Judgment granting the relief of possession under Section 22(1)(a) unless it was specifically claimed. He therefore, submits that this having not been done it was not permissible for the executing Court to grant the application seeking warrant of possession. He therefore, submits that the impugned order clearly suffers from an illegality and thus cannot be sustained in law.
4. Mr. Kuldeep Mahalle, learned counsel for the respondent decree - holder submits that, the agreement dated 25.01.1994 clearly contained a Clause for delivery of possession consequent to the execution and registration of the deed of sale and when specific performance of the agreement is sought and is granted, such grant of specific performance would inherently include the relief of possession also. It is submitted that the decree granted by the Court has to be understood in a wider sense in as much as, if possession is not held to be inherently included in the decree granting specific performance the decree would be rendered redundant. It is submitted that a Court does not pass redundant decree. It is further submitted that the Court is not denuded of its powers to render full justice to a party in whose favour relief has been granted and upheld by the higher Courts. He further invites my attention to the judgment of this Court in Kisan Shripat Patil & anr. Vs. Ragho Vedu Patil 2007 (4) Bom.C.R.400 which takes into consideration, the judgment of the Hon'ble Apex Court in Adcon Electronics Pvt. Ltd. (supra) and goes on to hold, that it would be permissible for the executing Court to grant the relief of possession, even though the same has not been specifically granted in the decree, as doing so ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (4) Judgment would result in granting appropriate, just and proper relief in favour of a person in whose favour a decree for specific performance is passed.
5. Section 22 of the Specific Relief Act, 1963 being material is quoted as under:
"22. Power to grant relief for possession, partition, refund of earnest money, etc.--(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for -
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or [made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceedings, allow him to amend the plaint on such terms as may be just for including a claim for such relief.::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (5) Judgment (3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21."
6. It is trite that once the Court grants a relief of specific performance, the decree would encompass, within itself, the relief of possession, even if the same is not specifically so stated, otherwise the decree itself would become otiose in as much as the decree - holder may have the title due to the execution and registration of the sale of the suit property in his favour, but would not be entitled to possession. In such a case, the decree, would merely be a paper decree without any factual relief coming to the decree - holder. Such a situation, is not permissible in law. Though, Section 22 of the Specific Relief Act, 1963 contemplates to correct this anomaly, in case it occurs, however Section 22 of the Specific Relief Act, 1963 can always be said to be an ancillary provision, enacted for the purpose of giving full effect to the decree for specific performance. In any case Section 22 of the Specific Relief Act, 1963 cannot be held to have an effect of denying the relief of possession in case its dictum is not followed. That surely cannot be the intention of the legislature, as the legislature does not enact contradictory laws. The provisions of Section 22 of the Specific Relief Act, 1963, thus cannot be interpreted to have created a bar for the grant of possession, in case the decree does not provide for the same, the position is rather to the contrary.
7. So also, Section 28(3) of the Specific Relief Act, 1963 ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (6) Judgment being relevant is reproduced as under :
"28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. -
(1)........
(2)......
(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:-
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease."
8. Thus, a conjoint reading of Section 22(1) and 28(3), of the Specific Relief Act, would demonstrate, that even though the relief of possession is not claimed, or granted by the Courts, the power to do so, is not taken away, but stands expressly conferred upon the Courts. It is settled position of law that even consequent to passing a decree in a suit for specific performance the Courts does not loose sessin over the matter, and continue to have jurisdiction in light of the mandate of Section 22 and 28 of the ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (7) Judgment Specific Relief Act.
9. This is further reflected from the use of the expression 'at any stage of the proceeding', as contained in the proviso to Section 22(2) of the Specific Relief Act, 1963. The expression 'at any stage of the proceeding', gives widest permission to the Court, including the executing Court too, to consider the plea for possession.
10. In the case of Babu Lal Vs. M/s Hazari Lal Kishori Lal and others (1982) 1 SCC 525 the Hon'ble Apex Court exposing on the issue in hand has held thus:
"11. Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession.
12. The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (8) Judgment for possession, or for partition or for separate possession including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.
13. The expression in sub-section (1) of Section 22 'in an appropriate case' is very significant. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case'. As pointed out earlier, in view of Order 2, Rule 2 of the Code of Civil Procedure, some doubt was ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (9) Judgment entertained whether the relief for specific performance and partition and possession could be combined in one suit ; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, a case may be visualised where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed or such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of Section 55(1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (10) Judgment possession of the property as its nature admits.
14. There may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, viz., where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the defendant. It is in such cases that a relief for possession must be specifically pleaded."
11. Further in light of Section 28 of the Specific Relief Act, the Hon'ble Apex Court in Babu Lal (supra) held as under.:
"26. Sub-section (3) of Section 28 clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the court may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to. Clause (b) of sub-section (3) of Section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-section (4) of Section 28 bars the filing of a separate suit for any relief which may be claimed under this section.
27. In Hungarford Investment Trust Ltd. v. Haridas ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (11) Judgment Mundhra dealing with Section 28(1) of the specific Relief Act, 1963 this Court observed : [SCR headnote page 694, para (3)] The specific Relief Act, 1963, is not an exhaustive enactment and under the law relating to specific relief a Court which passes a decree for specific performance retains control over the decree even after the decree had been passed. Therefore, the Court, in the present case, retained control over the matter despite the decree and it was open to the Court, when it was alleged that the party moved against had positively refused to complete the contract, to entertain the application and order rescission of the decree if the allegation was proved.
The reasoning given by this Court with regard to the applicability of sub-section (1) of Section 28 will equally apply to the applicability of sub-section (3) of Section 28.
28. This is an additional reason why this Court should not interfere with the eminently just order of the High Court. The High Court had amended the decree passed by the first appellate court and passed a decree for possession not only against the transferors but also against their transferee, that is, the petitioner.
29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (12) Judgment starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by the High Court."
12. In Lotu Bandu Sonavane vs. Pundlik Nimba Koli, 1985 Mh.L.J. 359, a learned Single Judge of this Court has held thus:
"5. Section 22 of the Specific Relief Act, 1962 reads as follows:
"22(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1966 any person suing for the Specific Performance of a contract for the transfer of immovable property may in an appropriate case ask for
(a) possession or partition and separate possession of the property in addition to such performance; or
(b) any other relief to which he may be entitled including the refund of any earnest money or deposit paid or made by him in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-
section (1) shall be granted by the Court unless it has been specifically claimed;
Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall at any stage of the proceeding allow him to amend the plaint on such terms as may be just for including a claim for such relief.
::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::927.wp.5129.18 (13) Judgment (3) the power of Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21"
No doubt sub-section (2) specifically lays down that no relief under clause (a) or clause (b) of the said sub-section shall be granted by the Court unless it has been specifically claimed. But it is not always necessary to claim such a relief. The requirement to claim the relief under clause (a)
(b) or S. 22(2) is qualified by the clause "in an appropriate case" 'an appropriate case' means a case in which the relief does not necessarily flow from the decree for specific performance of the agreement of sale. If such a relief is ancillary to and necessarily flows from a decree for specific performance then it is not necessary to specifically seek such a relief and the bar of S. 22(2) would not be attracted.
If the defendant is in possession of the property agreed to be sold and the decree directs a specific performance of the agreement of sale, the defendant is bound to execute the sale deed as per the decree and to put the plaintiff in possession of the property as contemplated by section 55(1)
(f) of the Transfer of Property Act. In such a cases it is not necessary to specifically claim the relief of possession in the suit.
6. This view finds support in the above referred decision of the Kerala High Court in Narain Pillai's case. In that case relying on the decision in Gyasa Vs. Risalo the learned single ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (14) Judgment Judge interpreted the expression 'in an appropriate case' appearing in opening clause of sub-section (1) of section 22 of the Specific Relief Act, 1962 and held that the said expression indicates that it is not always incumbent on the plaintiff to claim possession or partition and separate possession in a suit for specific performance of the contract for transfer of immovable property.
7. Admittedly the respondent in this case is in possession of the property, which is subject matter of the decree for specific performance and is bound to deliver possession of the property after execution of the sale-deed. Hence even though no specific prayer is made in the plaint and even though the decree is silent about delivery of possession, the executing Court was bound to grant the relief."
Though in this case, an application for amendment of plaint for including the claim, for possession, was also sought, that however, does not in any way dilute the dictum, as flowing from Paras 5 to 7 of the said judgment.
13. The dictum in Babu Lal (supra) has been followed in P. C. Varghese Vs. Devaki Amma Balambika Devi and others (2005) 8 SCC 486.
14. The matter came up for consideration of the Court in Prataprai Trambaklal Mehta Vs. Jayant Nemchand Shah and others 1996(2) Mh.L.J. 885 where a learned Single Judge of this Court has held as under :
::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::927.wp.5129.18 (15) Judgment "11. There is no dispute that the decree for specific performance is in respect of the entire building and it is not restricted only to a particular tenement in the said building, although decree contains a direction that the defendants should hand over flats Nos. 1 and 3 which were in possession of the defendants. It is now well settled that is not necessary in a suit for specific performance, either to separately claim possession or for the Court to pass a decree for possession. A decree for specific performance of contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being indicated by section 55 of the the Transfer of Property Act. Clauses (f) of section 55 (1) of the said Act provides that :
"The seller is bound
(f) to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits."
The delivery of possession in thus a necessary ingredient and part of transfer of ownership. Therefore, where a decree for specific performance of contract is silent as to the relief of delivery of possession, the executing Court is still competent to deliver possession. The Division Bench of Allahabad High Court in Pt. Balmukund vs. Veer Chand, AIR 1954 Allahabad 643, ruled that the decree for specific performance, which provides that the property should be sold to the plaintiff by the documents and the sale deed, shall be executed within a ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (16) Judgment certain time, failing which the Court will have the sale deed executed by a person nominated by it, implies that the delivery of possession shall be given in accordance with the provisions of section 55(1)(f) of the Transfer of Property Act. The Calcutta High Court took a similar view in Kartick Chandra vs. Dibakar Bhattacharjee, AIR 1952 Calcutta 363, and Subodh Kumar Banerjee vs. Hiramani Dasi and ors., AIR 1955 Calcutta 267. In the first case, it was held that the Court while allowing the prayer for specific performance vests the executing Court with all powers which are required to give full effect to the decree for specific performance. This was followed in the latter case in Subodh Kumar Banerjee's case (supra).
12. In Venkatesh vs. Parappa, (1966) 1 Mys.L.J. 799, Mysore High Court sustained the order of delivery of possession though the decree for specific performance was passed in general terms. All these decisions were referred to and relied on by Single Judge of Kerala High Court in Narayan Pillai vs. Ponnuswami Chettiar, AIR 1978 Kerala 236, where the learned Judge held:
"The executing Court can grant delivery of possession of property even where no such relief is granted by a decree for specific performance of the contract of sale."
There is a direct decision of this Court in Lotu Bandu vs. Pundalik, 1985 Mh.L.J. 359, where, Jamdar, J. held that it is ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (17) Judgment not necessary to specifically claim relief of possession in suit for specific performance and the executing Court is competent to grant such relief. The learned Judge observed with reference to section 22 of the Specific Relief Act that the requirement to claim the relief under clause (a) or (b) of section 22 is qualified by the clause "in an appropriate case". An appropriate case means a case in which the relief does not necessarily flow from the decree for specific performance of the agreement of sale. If such a relief is ancillary to and necessarily flows from a decree for specific performance, then it is not necessary to specifically seek such a relief and the bar of section 22(2) would not be attracted. The learned Judge further observed that if the defendant is in possession of the property agreed to be sold and the decree directs a specific performance of the agreement of sale, defendant is bound to execute the sale deed as per the decree and to put plaintiff in possession of the property as contemplated under sections 50 and 55(1)(f) of the Transfer of Property Act. In view of the decided cases, it is clear that most important part of such a decree is the portion where the Court directs that the contract to be specifically performed and the details which follow do not in any way limit the jurisdiction of the executing Court to take particular steps which are mentioned in the decree, but all other steps which ought to be taken for giving full effect to the decree for specific performance are not only within the competence of the Court, but the Court is bound to assist the party to that effect.
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13. Matter can be viewed from another angle also. A suit for specific performance of a contract of transfer of immovable property operates as lis pendens. In other words, any suit against the vendor of real estate for specific performance, his conveyance of the legal title after suit was brought would not suspend the proceedings or defeat the title under the decree of this Court. This is so ruled in Motilal Pal vs. Priya Nath Mitra, (1908) 13 C.W.N. 226. Obvious reason for this is that if when the jurisdiction of the Court has once attached, it could not be ousted by the transfer of the defendant's interest, there would be no end to litigation and justice would be defeated. Consequently, when such a suit for specific performance is ended by a final decree transferring the title, that title relates back to the date of agreement on which the suit is based and the Court will not permit the decree to be rendered nugatory by intermediate conveyances. Once this established legal position is borne in mind, there shall not be any doubt about the competence of the executing Court in granting possession even if the decree is silent as far as delivery of possession is concerned."
15. The matter after came for consideration in Malini V. Parab @ Prabhu and another Vs. Prafullakumar R. Deshpande since deceased represented by LR's Pratima Prafullakumar Deshpande and others 2008 (5) Mh.L.J. 633 wherein this Court after considering the judgment in Adcon Electronics Pvt. Ltd. (supra) held as under :
::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::927.wp.5129.18 (19) Judgment "20. What follows particularly from Babu Lal and Adcon Electronics Pvt. Ltd. (supra) is that the relief of possession being inherent in the relief of specific performance of the contract of sale it is not always necessary for the plaintiff to specifically claim possession but in cases where possession is parted with subsequent to such contract or agreement for sale, it is necessary that the plaintiff seeks the relief of possession also but this can be done at any stage of the suit including execution proceedings, and this on the assumption that a decree in a suit for specific performance is considered to be some what in the nature of preliminary decree. Being so, the plaintiffs' suit could not have been dismissed only because till date the plaintiffs had not sought the relief of possession as well, in addition to the reliefs of specific performance."
16. The matter thereafter has been considered in the case of Kisan s/o Shripat Patil & anr. (supra), which has been rendered after taking into consideration the judgment of the Hon'ble Apex Court in Adcon Electronics Pvt. Ltd. (supra). In Kisan s/o Shripat Patil & anr. (supra) this Court while considering a similar situation in light of the dictum as rendered in Adcon Electronics Pvt. Ltd. (supra) has by considering Section 28(3) of the Specific Relief Act, and Babu Lal Vs. M/s. Hazari Lal Kishori Lal and others, AIR 1982 SC 818 held as under :
"13. As already discussed hereinabove, apparently, I see no conflict in the aforesaid two judgments of the Apex Court in ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (20) Judgment the case of Babulal vs. M/s Hazarilal Kishorilal and Adcon Electronics vs. Daulat and another (supra). However, both the judgments are by the Co-ordinate Bench of the Honourable Judges. The judgment in the case of Adcon Electronics has not noticed the view taken by the Apex Court in the case of Babulal. However, even assuming that there is some conflict, the Full Bench of this Court in a case reported in 1994 Mh.L.J. 1669. Kamleshkumar Ishwardas Patel vs. Union of India and others and the Full Bench of the Punjab and Haryana High Court in a case reported in AIR 1981 P & 213, has taken a view that it is not necessary that a latter judgment of the Apex Court need to be followed and the High Courts could follow the one which in its view is better in point of law. I find that the view taken by the Apex Court in the case of Babulal (supra) is in accordance with law and, therefore, I am inclined to follow the same.
I further find that it is travesty of justice that though the decree for specific performance of contract has been passed way back in the year 1988 the respondent-plaintiff has not been yet in a position to get the decree executed and get its fruits. In that view of the matter, the writ petition is found without merit and as such, it is dismissed. .........."
17. In Adcon Electronics Pvt. Ltd. (supra), relied by the petitioner, the issue that arose for adjudication, was as to whether the suit was for land, for determining the territorial jurisdiction of the Division Bench of the Bombay High Court under Clause 12 of ::: Uploaded on - 13/03/2020 ::: Downloaded on - 24/03/2020 02:14:52 :::
927.wp.5129.18 (21) Judgment the letters patent, though the provisions of Section 22 (2) of the Specific Relief Act came up for consideration. The dictum in Adcon Electronics Pvt. Ltd. (supra), has already been considered by this Court in Malini V. Parab @ Prabhu and another (supra) and Kisan s/o Shripat Patil & anr. (supra), and it has been held, that the same does not interdict possession being granted, though the same, is not claimed or decreed, even in execution proceedings.
18. In light of the above, I do not see any infirmity in the impugned order as passed by the executing Court, as it clearly results in granting appropriate, just and proper relief in favour of a person in whose favour a decree for specific performance is passed. The petition therefore is without any merit and is accordingly dismissed. Rule stands discharged. In the circumstances, there shall be no order as to costs.
19. In case there are any objections available, other than the one already raised and decided, it would be permissible for the judgment - debtor to agitate the same, if so permitted in law.
(Avinash G. Gharote, J.) Sarkate.
...
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