Telangana High Court
Jupelly Malathi vs A.Ramesh Kumar on 17 October, 2022
HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CIVIL REVISION PETITION Nos.7109, 7110, 7123 and 7124
of 2017
COMMON ORDER:
Civil Revision Petition Nos.7110 and 7123 of 2017 are directed under Article 227 of the Constitution of India to set aside the order, dated 21.11.2016, passed in E.A.No.4 of 2016 in E.P.No.13 of 2015 in O.S.No.1345 of 2013 by the III Additional District Judge, Ranga Reddy District at L.B.Nagar.
Civil Revision Petition Nos.7109 and 7124 of 2017 are directed under Article 227 of the Constitution of India to set aside the order, dated 21.07.2017, passed in E.A.Nos.35 and 34 of 2017 respectively in E.A.No.4 of 2016 in EP.No.13 of 2015 in O.S.No.1345 of 2013 by III Additional District Judge, Ranga Reddy District at L.B.Nagar.
2. Heard the learned counsel for the petitioners and the learned counsel for the respondent No.1. Perused the material on record.
3. The petitioners and respondents in C.R.P.Nos.7109 and 7110 of 2017 are one and the same. Similarly, the petitioners and the respondents in C.R.P. Nos. 7123 and 7124 of 2017 are one and the 2 same. So also, the issues involved in all the revision petitions are one and the same. Therefore, I find that it is expedient to decide by common order.
4. The petitioners in all the four civil revision petitions are the claim petitioners/third parties in EP.No.13 of 2015 filed by the first respondent/decree-holder. The first respondent is the Decree-holder and the plaintiff in O.S.No.1345 of 2013 filed for specific performance of the agreement of sale, dated 12.09.2013, in respect of the suit schedule property consisting of open plot No.172 admeasuring 403.3 square yards situated at Surayangar Colony, Old Alwal, Malkajgiri Mandal, Ranga Reddy District and perpetual Injunction against respondent Nos.2 and 3/Judgment debtors/defendants. As respondent Nos.2 and 3 did not turn-up, they were set ex parte and an ex parte decree was passed. Subsequently, the first respondent/decree-holder filed EP.No.13 of 2015, wherein E.A.No.4 of 2016 filed under Order XXI, Rule-35
(i) read with Section 151 of the Code of Civil Procedure (C.P.C.) to deliver the possession of the E.P. schedule property by removing the obstructions against the respondent Nos.2 and 3, who remained 3 ex parte. E.A.No.4 of 2016 was allowed vide order, dated 21.04.2016, and the trial Court ordered the first respondent/decree-holder to get vacant possession of the schedule property after removing the structures on it, on payment of batta under order XXI Rule 35 of C.P.C. Aggrieved by the same, the claim petitioners filed applications in E.A.Nos.34 and 35 of 2017 under Section 151 C.P.C. stating that E.P.No.13 of 2015 is barred by law and not maintainable and consequently, prayed to dismiss the same. The trial Court dismissed both E.A.Nos.34 and 35 of 20117 vide order, dated 21.07.2017, observing that the claim petitioners have no locus standi to question or challenge the execution petition, as they are not parties to the main suit or E.P.No.13 of 2015.
5. Challenging the said orders, the present revisions are filed.
6. Learned counsel for the petitioners/claim petitioners submits that the decree passed in favour of the first respondent/decree- holder is only granting decree granting relief of specific performance of the agreement of sale and Perpetual Injunction. The trial Court committed error in passing the orders in E.A.No.4 4 of 2016 by granting relief of delivery of possession of the suit schedule property by removing the structures. He further submits that the petitioners/ claim petitioners are the owners and possessors of the suit schedule land, having purchased the same under registered sale deeds and constructed residential portions therein. The decree did not contain the relief of the delivery of possession. Therefore, granting orders by the trial Court for delivery of possession in E.A.No.4 of 2016 is nothing but committing grave irregularity in exercise of its jurisdiction. Therefore, he prayed to allow the civil revision petitions. He relied on the judgments of Apex Court in Bachhaj Nahar v. Nilima Mandal1 and Rameshwar Das Gupta v.State of Uttar Pradesh2 and Ramesh Gaikwad v. N.S.Prakasham3.
7. On the other hand, learned counsel for respondent No.1/decree-holder submits that the trial Court has rightly entertained the Execution Application and ordered for delivery of the possession by removing the structures therein and the claim petitioners do not have any locus standi to question the orders of 1 2008 (17) SCC 491 2 1996 Law Suit(SC) 1296 3 2017(2) ALD 444 5 the trial Court and as such, the impugned orders do not suffer from any infirmity. Therefore, he prayed to dismiss the civil revision petitions. He relied on the judgment of Ramesh Gaikwad v. N.S.Prakasham4, Sunderlal v. Gopal Sharan5, Kapoor Singh v. Om Prakash6, Babulal v. M/s.Hazari Lal Kishori Lal7, Chakradhar Paital deceased by L.Rs v.Gelhi Bewa deceased by L.Rs8 and G.Anandam v. Warangal Municipal Corporation9.
8. The undisputed facts are that the first respondent, who is the plaintiff, filed O.S.No.1345 of 2013 for specific performance of the agreement of sale in respect of the suit schedule property and for perpetual Injunction. Respondent Nos.2 and 3 were set ex parte and an ex parte decree was passed. Later, the first respondent/decree-holder filed EP.No.13 of 2015, wherein E.A.No.4 of 2016 was filed to deliver the possession of E.P schedule property by removing the structures. Undisputedly, the claim petitioners are not the parties either to the suit or the E.P. proceedings. However, the petitioners in C.R.P.Nos.7110 and 4 2017(2) ALD 444 5 2002 (0)SCJonline (MP)643 6 AIR 2009 Punjab and Haryana 188 7 AIR 1982 Supreme Court 818 8 AIR 2012 Orissa 44 9 1997 (1) ALD 587 6 7123 of 2017, who are the claim petitioners, have challenged the order in E.A.No.4 of 2016 and also the orders in E.A.Nos.34 and 35 of 2017 on the ground that the decree did not contain the relief of delivery of possession and the suit filed by the first respondent/decree-holder was decreed by granting the relief of specific performance of the agreement of sale and perpetual Injunction only. The trial Court overruled the said objections and dismissed E.A.Nos.34 and 35 of 2017 stating that the petitioners have no locus standi and the relief of grant of delivery of possession is an ancillary relief permissible under 22 of the Specific Relief Act, 1963.
9. The main contention of the petitioners in these revisions is that the Executing Court cannot go beyond the decree and required to execute the decree as it is. The Executing Court has no jurisdiction to alter or change the nature of decree. Inspite of the settled principle of law, the Executing Court directed to deliver the vacant possession of the subject premises in favour of the first respondent/decree-holder by removing the structures thereof. 7
10. On the other hand, it is contended by learned counsel for the first respondent/decree-holder that in a suit for specific performance, it is not necessary for the plaintiff to ask for possession, as the decree for specific performance necessarily follows the relief of possession. The relief of possession is ancillary to the decree for specific performance.
11. In the instant case, it is no doubt true, the first respondent/decree-holder, who is the plaintiff, has not claimed the relief of possession in the plaint in O.S.No.1345 of 2013. However, the Court below in the said suit has not granted the relief of delivery of possession. I find that the Court below has not addressed its mind about the possession of the schedule property. There is no doubt true that the Executing Court cannot travel beyond the order or decree under execution.
12. The Hon'ble Apex Court in Manickam @ Thandapani v. Vasantha [Civil Appeal No. 2726 Of 2022 decided on 5th April 2022], while dealing with similar question, in para No.25 held as under:
"A perusal of the aforesaid judgments would show that relief of possession is ancillary to the decree for specific 8 performance and need not be specifically claimed. That was the position even under the Specific Relief Act, 1877. Section 22 of the Act was introduced in pursuance of the recommendation of the Law Commission to avoid multiplicity of proceedings and to cut down the delay. Therefore, though the preponderance of judicial opinions under the Specific Relief Act, 1877 was in favour of the fact that relief of possession is ancillary to the decree for specific performance, it was further clarified by introducing Section 22 of the Act."
Going by the facts of the above judgment, it is evident that the respondent/defendant as the owner of plot admeasuring 2400 square feet had entered into a sale agreement with the appellants. One of the conditions in the agreement was that respondent would handover vacant possession of the suit property to the appellants. Subsequently, the said suit was decreed and the sale deed was executed in favour of the appellants therein. Thereafter, the appellants filed execution petition directing the respondent to pay the decree holders in possession of the property conveyed. Such application was resisted on the ground that the petition had been filed under Order XXI Rule 35(3) of the C.P.C. which deals with delivery of possession and the Executing Court allowed the said petition and directed the respondent to handover the possession of the property to the decree-holder. Assailing the same, the appeal was preferred and the same was dismissed. Aggrieved by the 9 same, the revision petition was preferred and the same was allowed reversing the orders of the Executing Court and directed the decree holder to file suit for possession. Challenging the said orders, the appellants approached the Apex Court. The Apex Court set aside the orders of High Court upholding the orders passed by the Executing Court.
13. In the present case also, similar circumstances do exist. The sole question that is to be decided is; whether the order of the Executing Court directing the Judgment-debtor to deliver the possession observing that the decree-holder is entitled for possession by removing the structures is sustainable?
14. A perusal of the impugned order in E.A.No.4 of 2016 would disclose that the trial Court has specifically framed a point as to whether the decree-holder is entitled to seek delivery of possession of the schedule property by removing the structures thereof and has elaborately discussed the said issue and allowed the petition mainly relying on the judgment of this Court in Ramesh Gaikwad's case (4 supra). Wherein, by relying on the judgment of Apex Court in Babulal's case (7 supra), this Court held that in a suit for specific 10 performance, prayer asked is only for specific performance of the contract for sale and no possession or other reliefs asked and sale deed once obtained, the possession can be asked by filing EP within the sweep of any proceeding or at any stage of the proceeding. The Babulal's case (7 supra) was considered by the Apex Court in Manickam's case stated supra. Having regard to the above decision of the Apex Court, the relief of possession is only ancillary to the decree of specific performance and need not be specifically claimed. Infact, the Apex Court further clarified that such relief can be claimed at any stage of the proceedings, which is wide enough to allow the party to seek relief of possession, even at the appellate stage or in execution stage, even if such prayer was required to be claimed. Therefore, in a suit for specific performance, wherein the judgment and decree does not contain the relief of delivery of possession, but the same can be granted by the trial Court as ancillary relief and the plaintiff can seek such relief of possession even at the belated stage or the execution stage as per the judgment of Manickam stated supra. 11 As such, there is no illegality in ordering delivery of the possession by the trial Court in E.A.No.4 of 2016.
15. So far as the reliefs claimed by the petitioners to reject E.A.No.4 of 2016 in EP.No.13 of 2015 as barred by law and not maintainable and to dismiss the EP No.13 of 2015 is concerned, the trial Court has elaborately discussed the issue by giving justified reasons as stated supra. Apart from this, the conduct of the claim petitioners was also discussed and took a view that without proceeding with the enquiry into the claim petitions, they filed the present application under Section 151 of C.P.C, though they are not parties to the suit proceedings or the Execution proceedings and also they are not parties to E.A.No.4 of 2016. The other allegations of the claim petitioners need not be gone into in deciding the legality of E.P.No.13 of 2015 and E.A.No.4 of 2016, as the first respondent-decree-holder is entitled to file Execution Petition to enforce the judgment and decree obtained by him against the Judgment-debtors. The Executing Court, as such, rightly allowed E.A.No.4 of 2016 and rightly dismissed E.A.Nos.34 and 35 of 2017 filed under Section 151 of C.P.C. vide impugned orders after 12 taking into consideration of the provisions of law and appreciating the facts in proper perspective.
16. For the foregoing reasons, I am of the opinion that the impugned orders in all the revisions do not suffer from any infirmity or illegality warranting interference by this Court.
17. Accordingly, all the civil revision petitions are dismissed. However, the trial Court is directed to dispose of the claim petitions vide E.A.Nos.1 and 2 of 2017 filed by the petitioners at the first instance and subject to the result, proceed with the implementation of the orders in E.A.No.4 of 2016 in EP.No.13 of 2015. Miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.
_______________________ A.SANTHOSH REDDY, J 17.10.2022 Nvl 13