Patna High Court
Rukmini Devi vs Pawan Kumar Gupta on 23 February, 1978
Equivalent citations: AIR1979PAT88, AIR 1979 PATNA 88, (1979) BLJ 165 1979 BLJR 241, 1979 BLJR 241
JUDGMENT B.P. Jha, J.
1. The decree-holder preferred an appeal against the judgment of Sri Manoranjan Sahay Verma, 1st Additional District Judge, Chapra dated 31st July, 1974 in Miscellaneous Appeal No. 74 of 1972.
2. The plaintiff decree-holder filed a suit for specific performance of a contract against Hirdya Narain (defendant No. 1) and Pawan Kumar Gupta (defendant No. 2). The court passed the ex parte decree (Ext. F) against Hirdya Narain. The court directed Hirdya Narain to execute a sale deed within three months from the date of decree provided the plaintiff deposits Rs. 7,300 in court. It also directed that if defendant No. 1 fails to execute the sale deed by 5th July, 1969 then is that case the court shall execute the sale deed in favour of the plaintiff decree-holder. After the passing of the decree, the plaintiff decree-holder applied for execution in execution case No. 12 of 1969. The plaintiff deposited Rs. 7,300 in court. Though plaintiff complied with the direction of the court, Hirdya Narain (defendant No. 1) did not execute the sale deed as per direction of the court. In this circumstance, the court executed the sale deed in favour of the plaintiff decree-holder. Thereafter, the plaintiff decree-holder applied for delivery of possession under Order 21, Rule 35 of the Code of Civil Procedure. The execution court issued the writ of delivery of possession and the Nazir effected the delivery of possession on 3rd April, 1970 (Ext. C/3'). On 1st April, 1970, Pawan Kumar (defendant No. 2) filed a petition under Section 47 of the Code of Civil Procedure and prayed that delivery of possession be stayed. The court by its order dated 3rd April, 1970 stayed the delivery of possession. The concurrent findings of both the courts are that the writ of delivery of possession was served by the Nazir on 3rd April 1970.
3. In the objection petition under Section 47 of the Civil P. C., the defendant No. 2 raised several objections to the following effect:--
1. that the decree is inexecutable as no decree was passed against defendant No. 2.
2. that the decree did not provide for delivery of possession.
3. the court did not direct defendant No. 2 to deliver possession of the suit property.
4. After considering the objections of defendant No. 2 both the courts concurrently held:--
1. that the decree was inexecutable against defendant No. 2.
2. that delivery of possession effected by the Nazir on 3rd April, 1970 was illegal and the property should be re-delivered to defendant No. 2 in accordance with law.
5. In the present case the short point for consideration is: whether the decree for specific performance of contract passed against Hirdya Narain (defendant No, 1) is executable against Pawan Kumar (defendant No. 2-respondent)? In my opinion the impugned decree is inexecutable against Pawan Kumar (respondent). In this connection learned counsel for the respondent relied on a decision of the Supreme Court in Durga Prasad v. Deep Chand (AIR 1954 SC 75). In that case their Lordships of the Supreme Court held as follows (at p. 81):--
"In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff."
In my opinion the decision of the Supreme Court applies to the facts of this case. If there is no decree against the subsequent purchaser (defendant No. 2) then, in my opinion, the decree cannot be executable against him. The reason is this :--
By virtue of the subsequent sale, title of the vendor (defendant No. 1) passed on to defendant No. 2. Unless and until the title of the subsequent purchaser (defendant No. 2) is cancelled or declared void, the executing court cannot ask defendant No. 2 (subsequent purchaser) to deliver possession of the property which he had validly purchased from the vendor (defendant No. 1). It is in this circumstance the Supreme Court was of the opinion that in a case of specific performance of the contract, the subsequent transferee and the vendor both should execute the sale deed in favour of the plaintiff. In the present case Hirdya Narain (defendant No. 1 vendor) was directed by virtue of the decree (Ext. F) to execute a sale deed in favour of the plaintiff on depositing Rs. 7,300/-. By virtue of this decree (Ext. F), the subsequent purchaser (defendant No. 2) was not directed to execute sale deed in favour of the plaintiff along with Hirdya Narain (original vendor). In the absence of such direction, the decree (Ext. F) cannot be executable against subsequent transferee-Pawan Kumar. If it is so, the defendant No. 2 is not entitled in law to relinquish his title or to deliver possession of the property which he had validly purchased from Hirdya Narain. In this circumstance, I hold that the decree is inexecutable against the subsequent purchaser (defendant No. 2) and delivery of possession effected by the Nazir on defendant No. 2 is illegal and not in accordance with law. The concurrent findings of both the courts are that the Nazir effected the writ of delivery of possession on 3rd April, 1970. Both the courts concurrently held that the delivery of possession was illegal for the simple reason that the decree did not require defendant No. 2 to deliver possession. Hence both the courts concurrently held that defendant No. 2 may take re-delivery of possession of the property through the court in accordance with law. In my opinion there is no reason to differ with the concurrent findings of the courts below.
6. Learned counsel for the appellant contends that it is the duty of the executing court to amend the plaint under Order 6 Rule 17 in order to do justice between the parties. In this connection learned counsel for the appellant contends that Order 6 Rule 17 provides that the court may at any stage of the proceeding amend pleadings. He submits that the words "at any stage of the proceedings" include the execution stage. I am unable to accept his argument. In my opinion the words occurring in Order 6 Rule 17 "at any stage of the proceedings" mean the trial stage or the appellate stage arising out of the suit and not the execution stage. If the pleadings are being amended at the execution stage then there will be a fresh trial in the execution stage and a fresh judgment will have to be passed by the executing court. In my opinion such practice is quite foreign to the Civil P. C. In this connection learned counsel for the appellant relied on a decision of Delhi High Court in M/s. Ex-Servicemen Enterprises v. Sumey Singh (AIR 1976 Delhi 56). In that case the Delhi High Court interpreted Section 22 of the Specific Relief Act. Section 22 of the Specific Relief Act, 1963 runs as follows:--
"22. (1) Notwithstanding anything to the contrary contained in the Civil P. C, 3908, 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.
(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 S, 21,"
While interpreting the words "at any stage of the proceeding" the Delhi High Court held that the words "at any stage" include the execution stage. In my opinion the decision of the Delhi High Court does not apply to the facts of this case. In the present case I am not required to interpret Sec, 22 of the Specific Relief Act. The same matter again came for discussion before the learned single Judge of Delhi High Court (See AIR 1976 Delhi 181). When plaint was amended, the defendant also amended the written statement and the defendant wanted that the case should be tried by the executing court. The Delhi High Court rejected this contention of the defendant. In the case before the Delhi High Court a compromise was entered into between the plaintiff and the defendant and the defendant had agreed to execute the sale deed and also to deliver possession to the plaintiff for a sum of Rs. 1,16,100/- In that case the plaintiff did not claim the delivery of possession in the relief portion of the plaint. In order to remove the technical difficulty the court allowed the plaintiff to amend the plaint in respect of delivery of possession under Section 22 of the Specific Relief Act, 1963. It is, therefore, clear that there was a valid decree against the defendant and as such the court was justified while interpreting Section 22 of the Act to direct the plaintiff to amend the plaint. In the present case no decree has been passed against defendant No. 2 for the specific performance of contract nor defendant No. 2 waa asked to deliver possession of the suit property to the plaintiff. Hence in the absence of any such decree, the delivery of possession of the property of defendant No. 2 cannot be effected for the simple reason that the defendant No. 2 is holding the property on the basis of the valid sale deed executed by defendant No, 1 in his favour,
7. Learned counsel for the appellant contends that in view of Section 19 (b) of the Specific Relief Act, 1963, the decree of the specific performance of contract can be enforced against the subsequent purchaser. He contends that all the averments in the plaint suggest that the subsequent purchaser purchased it to the knowledge of the original contract. If it is so, learned counsel for the appellant contends that it is within the power of the executing court to amend the plaint so that the specific relief against defendant No. 2 be added.
In my opinion such amendment cannot be allowed at the execution stage. If it is allowed the defendant will file fresh written statement, the court will have to frame issue and to deliver fresh judgment on the facts of the case. In my opinion such procedure was never envisaged by the framers of the Civil P. C. Hence I am unable to allow the plaintiff decree-holder to amend the plaint at this belated stage in the execution proceeding. In this connection the plaintiff decree-holder filed a petition for amendment of judgment and decree for passing a decree against defendant No. 2. This prayer was rejected on 15-9-69. No revision was preferred, against the order dated 15-9-69 and, therefore, it has become final between the parties. The executing court was justified in refusing to amend the decree for the simple reason that no relief was claimed in the plaint against defendant No. 2. If no relief was claimed against defendant No. 2, the executing court was justified in refusing to amend the decree. It is a settled law that the decree cannot be amended if it is prepared on the basis of the judgment. If there is variance with the judgment and decree then only the decree can be amended otherwise not. In the present case there is no variance with the judgment and decree and as such it cannot be amended.
8. Learned counsel for the appellant contends that it is the duty of the court to pass the decree and if there is any mistake in the decree it can be amended by the executing court. In my opinion there was no mistake in the decree. The plaintiff prayed for passing a decree against defendant No. 1 (Hirdya Narain) for specific performance of contract. The trial court passed the ex parte decree in favour of defendant No. 1 on the basis of the claim of the plaintiff decree-holder. The plaintiff never prayed that the decree be passed against defendant No. 2 and hence the trial court did not pass any decree against defendant No. 2. Hence in my opinion the trial court did not commit any mistake in preparing the decree. Hence there is no need of amendment of decree.
9. The point of law raised in this appeal is summarised thus:--
The words "at any stage of the proceedings" occurring under Order 6 Rule 17 of the Civil P. C. mean the trial stage or at the appellate stage arising out of the suit. It does not include execution stage. In a decree for specific performance of contract, the decree must direct the original vendor and the subsequent purchaser to execute the sale deed in favour of the petitioner. If the subsequent purchaser has not been, directed to execute the sale deed in favour of the petitioner, the decree cannot be executed against him. Hence in a case of specific performance of contract such decree must be passed in order to effect delivery of possession on the subsequent purchaser.
Ordinarily the decree should not be amended. If there is variance between the judgment and decree the decree can be amended otherwise not.
10. In the result the appeal is dismissed and parties will bear their own costs.
R.P. Sinha, J.
I agree with the order proposed.