Madras High Court
K.Palanisamy vs K.Paramasivam on 11 August, 2011
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.08.2011 CORAM THE HON'BLE MR.JUSTICE S.RAJESWARAN Civil Revision Petition No.2579 of 2004 and C.M.P.No.19672 of 2004 K.Palanisamy ... Petitioner Vs. 1.K.Paramasivam 2.P.Muthusamy 3.Minor Raja 4.Minor Irusa Gounder 5.Minor Lakshmi by Guardian P.Muthusamy 6.Chandra ... Respondents (R3 to R5 recorded as Lrs of the deceased second respondent and also R6 brought on record as LR of the deceased second respondent vide order of Court dated 23.01.2008 in C.M.P.No.969/2007. Prayer: This petition has been filed under Article 227 of the Constitution of India aganist the order and decree dated 10.11.2004 and made in R.E.A.No.421 of 2004 in R.E.P.No.39 of 2004 in O.S.No.414 of 1996 on the file of the Additional Subordinate Judge, Salem. For petitioner : Mr.T.R.Rajaraman For respondents (R1) : Mr.D.Shivakumaran R2 to R5 given up * * * * * ORDER
This Civil Revision Petition has been filed against the order and decree dated 10.11.2004 and made in R.E.A.No.421 of 2004 in R.E.P.No.39 of 2004 in O.S.No.414 of 1996 on the file of the Additional Subordinate Judge, Salem.
2. This Civil Revision Petition has been filed by the 5th defendant in O.S.No.414 of 1996.
3. O.S.No.414 of 1996 has been filed by the first respondent/plaintiff before the Additional Sub Court, Salem against the defendants 1 to 4 therein, for a decree of specific performance.
4. The suit was decreed for specific performance against the defendants therein on 28.06.2002. The plaintiff/first respondent herein filed an Execution Petition in R.E.P.No.39/2004 for recovery of possession of the suit property. At that stage, the 5th defendant filed R.E.A No.421 of 2004 under Section 47 read with Section 151 CPC before the Execution Court, to declare that the decree obtained by the plaintiff was not executable against this revision petitioner/the 5th defendant in the suit. The main contention putforth by this petitioner/the 5th defendant before the Execution Court was that there was no decree obtained by the plaintiffs against this defendant and there was no decree for possession in the decree. As such, the decree obtained by the plaintiff cannot be executed against this defendant. But, the trial court rejected the contention of this 5th defendant and dismissed the application. As against that order, the above revisiion has been filed.
5. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent/plaintiff. I have also gone through the documents made available on record.
6. The learned counsel appearing for the petitioner/5th defendant while assailing the order dated 10.11.2004, made in R.E.A.No.421/2004, in R.E.P No.39 of 2004, in O.S.No.414 of 1996 passed by the Additional Subordinate Judge, Salem, would submit that when the decree obtained by the plaintiff is only for specific performance and no relief of possession was sought for, it was not open to the Execution Court to go behind the decree and order delivery of possession. The Execution Court had grossly erred in considering the issue whether the decree is executable or not against this defendant. Though this defendant was already a party in the suit, admittedly, no relief was sought for against the him and hence, no decree was also obtained. While so, whether ordering delivery of possession against this defendant is sustainable in law? In support of his contention, the learned counsel appearing for the petitioner relied on the following judgments:
1.AIR 1935 MAD 333 (Madhavarapu Sathiraju and others vs. Madhavarapu Venkanna and others)
2.AIR 1954 SC 75 (Durga Prasad and another vs. Deep Chand and others)
3.AIR 1979 PATNA 88 (Rukmini Devi vs. Pawan Kumar Gupta) 4.2001 (7) SCC 698 (Adcon Electronics Pvt., Ltd., vs. Daulat and another)
7. Per contra, the learned counsel appearing for the respondent/plaintiff would submit that the plaintiff being a decree holder has filed a petition before the Execution Court for executing the decree obtained by him. According to him, when the suit for specific performance was filed, the relief of possession is also inbuilt and an Execution Petition could be filed by the plaintiff under Order 21 Rule 35 for recovery of possession also. Therefore, when the delivery of possession is incidental to the decree of specific performance, the direction given by the Execution Court to deliver possession of the property is sustainable both in law and on facts and it does not require any interference by this Court. Therefore, he prayed for confirming the order passed by the Execution Court.
8. The learned counsel appearing for the respondent/plaintiff relied on the following decisions in support of his above contentions:
1.AIR 1982 SC 818 (Babu Lal vs. M/s.Hazari Lal Kihori Lal and others)
2.AIR 1983 CAL 51 (Debabrata Tarafder vs. Biraj Mohan Bardhan))
3.MANU/MP/0024/2002 (Mohd. Yakub vs. Abdul Rauf and another)
4.MANU/MP/0432/2002 (Sunderlal and others vs. Gopal Sharan)
5.MANU/KV/0720/2003 (Velayudham vs. Chandran)
6.AIR 2005 PATNA 133 (Aibunnisha vs. Masrur Alam) 7.2007 (3) CTC 529 (S.Sampoornam and another vs. P.V.Kuppuswamy and 8 others)
8.AIR 2007 ALLAHABAD 5 (Jafar Mian s/o.Sadaq Mian vs. Qaiser Jahan Begum and others)
9. I have considered the rival submissions with regard to the facts and the above citations on either side.
10. The order under challenge before this Court is the order of the Execution Court in R.E.A. No.421/2004, in R.E.P No.39/2004 filed by the revision petitioner herein under Section 47 and 151 CPC.
11. The case of the revision petitioner in R.E.A No.421/2004 is that, the petition mentioned property was the property of the second defendant's father. The second defendant sold the property in favour of the petitioner for a valid consideration as per the Registered Sale Deed dated 08.10.1993. He was also put in possession of the property and the Patta was also transferred in his name. The first respondent i.e., the plaintiff in O.S.No.414/1996 created a false document and on that basis filed a suit for specific performance in O.S.No.414/1996. In 2001, the revision petitioner was served with a notice in a petition filed by the first respondent/plaintiff under Order I Rule 10 of CPC. However, no summon was served on him in the suit. It was learnt that the first respondent obtained a collusive decree and the trial court passed the decree only against the defendants 1 to 4 and there was no decree against him. The first respondent/plaintiff filed EP No.179/2002 for execution of the sale deed. No relief was asked against him in EP No.179/2002. Sale Deed was executed in favour of the plaintiff by this Court on behalf of the other defendants and not on behalf of this revision petitioner herein. The revision petitioner filed a suit in O.S.No.702/2003 and also filed an injunction application under Order 39 Rule 1 CPC and the same is pending. O.S.No.702/2003 is for declaration and permanent injunction.
12. While so, on 09.10.2004, the first respondent/plaintiff with Amin/Vao and police attempted to dispossess the petitioner from the property which is illegal. The execution for delivery of possession without a decree of possession is nothing but a fraud played by the plaintiff. Therefore, the execution without any decree is void and without jurisdiction.
13. On 09.10.2004, the petitioner showed all the documents to the Amin and objected for delivery of property without a decree. The Amin refused to accept the obstruction, but, returned without delivering the property. As the plaintiff will come again to take possession of the property, the revision petitioner filed R.E.A No.421/2004 to declare that the decree is not executable for possession since there is no decree for possession and declare the order of delivery in the execution petition as null and void.
14. This Section 47 application was resisted by the plaintiff by filing a counter, wherein it was stated that the property belonged to the second defendant/Muthuswamy and the vendors of the petitioner have no right to convey the property to the petitioner. The petitioner colluded with the said Ponnuswamy and created a sale deed on 08.10.1993 as though the property belongs to the second defendant's father Ponnuswamy. Even during the pendency of the suit, the said Ponnuswamy and others sold the property to the petitioner on 08.10.1993 without title.
15. As the said Muthuswamy did not come forward to execute the Sale Deed as agreed to under the agreement dated 27.01.1993, the plaintiff filed the suit in O.S.No.414/1996 for specific performance against Muthuswamy and others. As the petitioner got into the property unlawfully, he impleaded as a party/defendant in I.A.No.486/1996. The suit was decreed on 28.06.2002 and the Sale Deed was also executed by the Court on 18.11.2002. Throughout the suit proceedings, the petitioner remained ex-parte and he cannot claim any right over the suit property.
16. As per the orders of this Court, the plaintiff and the Amin went to the suit property for delivery. As it was objected to by the petitioner, the plaintiff filed an application for police aid and the same was ordered by the Execution Court. Thereafter, when they went to the property on 09.10.2004, objection was raised to take possession and therefore, the delivery could not be effected.
17. According to the plaintiff, the decree is binding on the petitioner also who was impleaded as the 5th defendant in the suit. Once the sale deed is validly executed by the Court, then possession is to be given to the decree holder. Hence he prayed for the dismissal of the Section 47 application. The Execution Court while dismissing the Section 47 application, held that in a decree for specific performance of a contract, the relief of possession is incidental and part and parcel of the decree, and therefore, the Court has jurisdiction to order delivery of possession although the decree in the suit for specific performance does not provide for delivery of possession. The correctness of this order dated 10.01.2004 was assailed by the revision petitioner in this revision petition under Section 115 CPC. The main contention urged on behalf of the revision petitioner is that, the decree is only for specific performance of enforcing the sale agreement and as there is no relief sought for getting the possession, it is not open to the Execution Court to go behind the decree and order delivery of possession. The other point urged was that Section 47 application was dismissed without referring to Section 20(2) of the Specific Reliefs Act.
18. In 1935 MAD 333 (cited supra), a Division Bench of this Court held as follows:
"........As provided in Section 91, Trusts Act, the natural result of the plaintiffs having; purchased the property with notice of the prior contract in defendant 1's favour was that they must hold the property for the benefit of the latter to the' extent necessary to give effect to the contract. For all other purposes, and as between themselves and their vendors the plaintiffs were the owners : see 13 IC 176. And this is the reason why several cases have held that in such circumstances the decree for specific performance must direct the first purchaser also to join in executing the conveyance : see 26 Bom 159 and 1915 Mad 37. Even in such a case, the defeated purchaser may in certain circumstances be entitled to the benefit of subrogation, as held by the Privy Council in Nasiruddin v. Ahmad Hussain, 1926 PC 109. But here, the plaintiffs were parties to the suit for specific performance and the decree in that suit directed defendant 1 to deposit in Court an amount representing the full value of the property and not merely the value of the equity of redemption subject to the mortgage. Ordinarily, as provided for in Section 55(5)(b), T.P. Act, when a purchaser is called upon to pay the full value of the property, he will be entitled to retain in his hands the amount required to discharge any encumbrance existing on the property. The reasonable construction of the decree in O.S. No. 8 therefore is that, instead of exercising that right, defendant 1 deposited the full amount in Court and the present plaintiffs who have drawn a considerable portion of that amount in satisfaction of their claim are bound to apply it in discharge of the mortgage and certainly cannot seek to hold the properties of defendant 1 liable over again for payment of the mortgage debt. The learned Judge was therefore justified in dismissing the suit as against defendant 1"
19. In AIR 1954 SC 75 (cited supra), the Hon'ble Supreme Court observed as follows:
"36. Now arises a question which touches the Custodian U. P. The contract was for Rs. 62,000. The plaintiff paid Rs. 10,000 as earnest money but this was later returned, so Rs. 62,000 is still due. But there is a conveyance outstanding in favour of the appellants for which they have paid, according to their case Rs. 58,000. If the Rs. 62,000 due to the Nawab is paid to him, or to the Custodian, U. P., who represents his estate, it is evident that the Nawab, who is at fault, will be paid twice over for the same property and his estate will benefit accordingly while the appellants will be left to pursue their remedies against the Nawab or his estate. The question is whether we have power to direct that the Rs. 58,000 be paid to the appellants instead of to the Nawab and thus obviate further, and possibly fruitless litigation. But before we decide that, we will consider another question which is bound up with it, namely the proper form of decree in such cases.
37. The practice of the courts in India has not been uniform and three distinct lines of thought emerge. (We are of course confining our attention to a 'Purchaser's' suit for specific performance). According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the plaintiff and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone.
42. 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. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin AIR 1931 Cal 67 (C), and appears to be the English practice. See Fry on Specific Performance, 6th edition, page 90, Paragraph 207 ; also Potter v. Sanders, (1846) 67 ER 1057 (D). We direct accordingly."
20. Relying on the above two judgments, it was vehemently contended that as the petitioner did not join in executing the sale deed and as the Court did not execute the sale deed in favour of the plaintiff and on behalf of the revision petitioner also the execution petition filed against him for delivery of possession was not maintainable.
21. I am unable to accept this submission made by the learned counsel for the revision petitioner. Eventhough this Court and the Hon'ble Supreme Court stipulated as to how the specific performance decree is to be executed, they are not the authorities to hold when the revision petitioner did not join in executing the sale deed, delivery of possession cannot be sought for from him.
22. In 2001 (7) SCC 698 (cited suprea), the Hon'ble Supreme Court held as follows:
"16. In a suit for specific performance of contract for sale of immovable property containing a stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs :
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, 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.
17. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for."
23. A perusal of the above judgment would make it very clear that the issue involved in that case before the Sub Court is that, what is suit for land under Clause 12 of the Letters Patent of the Bombay High Court and it is not helpful to the case of the petitioner herein.
24. In AIR 1979 Patna 88 (cited supra), a Division bench of the Patna High Court held as follows:
"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 Chan (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, 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 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 was 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."
25. This judgment, indeed, supports the case of the revision petitioner herein to the hilt, but, I am unable to follow the same in view of the subsequent judgment of the Hon'ble Supreme Court made in AIR 1982 SC 818 (cited supra), which is the authority in a case of this nature and it has been followed in all the subsequent judgments.
26. In the above judgment, the Hon'ble Supreme Court has held as follows:
"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 for possession, or for partition, or for separate possession including the relief for specific performance. These reliefs he can claim, not- withstanding 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 stage 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 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 visualized 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 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 provision 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 possession of the property as its nature admits.
14. There may be circumstances in which are 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.
20. It is thus clear that the Legislature has given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case the High Court granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the Court should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection.
21. If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the Court itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor.
22. The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of section 22, which is only an enabling provision.
24. As pointed out in the earlier part of the judgment, the petitioner had started construction and, therefore, the decree-holders sought to injunct him from making construction on the disputed land but they were lulled by undertaking given by the petitioner that he would demolish the construction and restore the land to its original position in case the suit for specific performance was decreed. The undertaking given no doubt is a clever undertaking, but that might have given an impression to the plaintiffs decree holders that in the event of success of the suit the construction would be demolished and they would get back possession. Now the judgment-debtor petitioner seeks to take advantage of the expression used in the undertaking to contend that he had undertaken only to demolish the construction and restore the land to its original position. The contention now raised is that the petitioner never gave an undertaking to restore back-possession of the disputed property to the decree-holders. Indeed, Mr. Shanti Bhushan stated before the Court that he was prepared to get the construction demolished but then stops short and says that possession could not be delivered to the decree holders unless there was an amendment in the plaint. We are not prepared to take such a narrow view of section 22. It was open to the Court to allow an amendment and the Court on the basis of that section has allowed delivery of possession in pursuance of the decree passed in the case.
25.Before closing discussion on this point we cannot lose sight of section 28 of the Specific Relief Act, 1963, which reads:
"28. (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or leassee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase-money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.
(2) Where a contract is rescinded under sub- section (1), the Court-
(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which the possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connexion with the contract.
(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.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be "
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 Sub-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 Hungerford Investment Trust Limited vs. Haridas Mundhra, (AIR 1972 SC 1826) dealing with section 28 (1) of the Specific Relief Act, 1963 this Court observed (at p.1832):
"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 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.
26. From the above, it is very clear that there is no merit in the contention of the revision petitioner that in the absence of any decree of possession, it is not open to the Execution Court to order delivery.
27. I am not referring to the rest of the judgments cited on behalf of the respondent/plaintiff as all these judgments excepting one followed Bapulal Judgment (cited supra), and on that basis held that before the Execution Court possession can be asked for and delivery can be made in a specific performance decree eventhough there is no decree of possession at all.
28. In the light of the above facts and circumstances of the case and on the basis of the law laid down by the Hon'ble Supreme Court in AIR 1982 SC 818 (cited supra) (Babulal case), I have no hesitation in holding that there are no merits in the above Civil Revision Petition and consequently, the order passed by the Execution Court on 10.11.2004 in R.E.A.No.421 of 2004 in R.E.P.No.39 of 2004 is valid and sustainable.
29. In the result, the above Civil Revision Petition is dismissed. No cost. Consequently, connected miscellaneous petition is also closed.
cse To The Additional Subordinate Judge, Salem