Rajasthan High Court - Jodhpur
Karnail Singh vs Shyam Sundar (2026:Rj-Jd:19553) on 24 April, 2026
[2026:RJ-JD:19553]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 23499/2025
Karnail Singh S/o Shri Sundar Singh, Aged About 95 Years, R/o 3
Fc Jagtewala, Tehsil Sri Karanpur, District Sri Ganganagar (Raj.).
----Petitioner
Versus
Shyam Sundar S/o Shri Jugal Kishor Maheshwari, R/o Ward No.
9, Sri Karanpur, Tehsil Sri Karanpur, District Sri Ganganagar
(Raj.).
----Respondent
For Petitioner(s) : Mr. Rohitash Singh Rathore
For Respondent(s) : Mr. Nitin Trivedi
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
(i) Arguments concluded on : 13.03.2026
(ii) Order reserved on : 13.03.2026
(iii) Full order/Operative part : Full judgment
(iv) Order pronounced on : .04.2026
1. The present writ petition under Article 227 of the Constitution of India has been filed by the petitioner-judgment debtor challenging the order dated 19.11.2025 (Annx.5) passed by the Additional District Judge, Sri Karanpur, District Sri Ganganagar in Execution Case No. 02/2010 (Shyam Sunder vs. Karnail Singh), whereby objection application filed by the petitioner under Section 47 of the Code of Civil Procedure, 1908, has been rejected and the application of the respondent-decree holder under Section 151 of C.P.C. has been allowed.
2. Briefly stated, the facts of the case, as pleaded in the writ petition, are that the respondent instituted a suit for specific (Uploaded on 24/04/2026 at 11:18:00 AM) (Downloaded on 25/04/2026 at 03:32:54 AM) [2026:RJ-JD:19553] (2 of 11) [CW-23499/2025] performance of an agreement to sell 10 bigha of land of his share situated in Chak No. 3 FC, Murabba No. 19, Kila Nos. 6 to 15. The relief sought in the suit was confined to execution of the sale deed and did not include possession. The petitioner contested the suit, contending that the land in question was joint and unpartitioned, and therefore, could not be specifically sold. The trial court, however, decreed the suit in favour of the respondent vide judgment dated 23.08.2002. Thereafter, execution proceedings were initiated. In the said execution proceedings, the respondent- decree holder filed an application under Section 151 of C.P.C. seeking delivery of possession on the ground that such relief is implicit in a decree for specific performance. The petitioner- judgment debtor opposed the same by filing objections under Section 47 of C.P.C., asserting that the decree did not grant possession and that the Executing Court cannot travel beyond the scope of the decree. It was further contended that the land being joint agricultural land, possession could not be delivered without partition and without impleading the co-sharers, and that the matter falls within the jurisdiction of the revenue court and not the civil court. Despite these objections, the Executing Court allowed the application of the respondent-decree holder on 19.11.2025 and rejected the petitioner's objections.
3. It has further been submitted that, in the meanwhile, the sons of the petitioner have instituted a revenue suit in respect of the same land before the S.D.O. (Revenue), Sri Karanpur, wherein an interim temporary injunction dated 31.07.2024 is in operation. It has been contended that in view of the subsisting stay order, (Uploaded on 24/04/2026 at 11:18:00 AM) (Downloaded on 25/04/2026 at 03:32:54 AM) [2026:RJ-JD:19553] (3 of 11) [CW-23499/2025] possession cannot be delivered. Additionally, the land in question is mortgaged with Punjab National Bank, which has not been impleaded as a party, thereby rendering the execution proceedings legally untenable.
4. Heard learned counsel for the parties.
5. Learned counsel for the petitioner has submitted that the Executing Court erred in granting possession by invoking Section 151 of C.P.C., despite the decree did not provide for such relief. It has been contended that it is a settled principle of law that the Executing Court cannot travel beyond the terms of the decree.
6. It has been submitted that the original suit was confined to the relief of specific performance, namely, execution of the sale deed, and neither any prayer, issue nor decree for possession was made. Therefore, possession cannot be granted at the stage of execution.
7. It has been further submitted that the land in question is joint agricultural land having multiple co-sharers, and in absence of partition and impleadment of all co-owners, possession of a specific portion cannot be delivered. It is argued that the matter falls within the jurisdiction of the revenue court and not the civil court.
8. It has been contended that although, a share in joint property may be transferred, possession thereof cannot be handed over without prior partition, as consistently held in judicial precedents. Further, it has been contended that the property is ancestral in nature, and the rights of other legal heirs cannot be adversely affected in execution proceedings.
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9. Inviting attention to Section 22 of the Specific Relief Act, it has been argued that relief of possession cannot be granted unless it has been specifically claimed in the suit. It has been submitted that a revenue suit concerning the same land is pending and an interim injunction is in operation, thereby restraining delivery of possession. Further, the land is mortgaged with Punjab National Bank, which has not been impleaded as a party, rendering the execution proceedings defective.
10. Lastly, it has been contended that the Executing Court has recorded erroneous findings regarding prior objections and failed to consider that related proceedings are pending before this Court, and thus it has been urged that impugned order, having expanded the scope of the decree, deserves to be set aside.
11. In support of his contentions, learned counsel for the petitioner has relied upon the following decisions :-
i. Kartar Singh vs. Harjinder Singh and Others reported in (1990) AIR (SC) 854; ii. Ramdas vs. Sitabai and Others reported in (2009) AIR (SCW) 4365; iii. Dhara Singh vs. Fateh Singh and Others reported in (2009) AIR (Raj) 132; iv. Adcon Electronics Pvt. Ltd. vs. Daulat and Anr. (Appeal Civil No. 1566/1991) decided on 12.09.2001; and v. Babu Lal vs. Hazari Lal Kishori Lal and Others reported in (1982) AIR (SC) 818. 12. In contrast, learned counsel for the respondent while
supporting the order impugned, has submitted that the Executing Court has rightly allowed the application under Section 151 of C.P.C., as the relief of possession is incidental and ancillary to a decree for specific performance. It is contended that once the sale (Uploaded on 24/04/2026 at 11:18:00 AM) (Downloaded on 25/04/2026 at 03:32:54 AM) [2026:RJ-JD:19553] (5 of 11) [CW-23499/2025] deed has been executed and registered in favour of the decree- holder, he becomes entitled to possession of the property, even if the same was not expressly prayed for in the suit.
13. It has been further submitted that the objections raised by the petitioner were already considered and decided in the original suit as well as in earlier proceedings in execution, and therefore cannot be permitted to be re-agitated.
14. It has been argued that the provisions of Section 22 of the Specific Relief Act are directory in nature, and the Court is empowered to grant possession at any stage of the proceedings, including execution.
15. Learned counsel for the respondent has invited attention of this Court to Section 44 of the Transfer of Property Act, 1882 and submitted that a transferee of an undivided share in joint property merely steps into the shoes of the transferor and acquires corresponding rights, including joint possession and the right to seek partition. It further provides that in case of a dwelling house belonging to an undivided family, a transferee who is not a member of such family, is not entitled to joint possession or common enjoyment thereof, in view of the statutory limitation contained in the said provision.
16. It has been submitted that the suit for specific performance, which culminated in the decree, pertained to land comprised in Kila Nos. 6 to 15 of Murabba No. 19, whereas, the subsequent revenue suit relates to Kila Nos. 16 to 20 of the same Murabba, and thus, concerns distinct parcels of land. It has also been contended that mere existence of a mortgage over the property (Uploaded on 24/04/2026 at 11:18:00 AM) (Downloaded on 25/04/2026 at 03:32:54 AM) [2026:RJ-JD:19553] (6 of 11) [CW-23499/2025] does not, in law, operate as a bar to the delivery of possession in execution of a valid decree.
17. In support of his contentions, learned counsel for the respondent has relied upon the following decisions :-
i. Manickam @ Thandapani & Anr. vs.
Vasantha (Civil Appeal No. 2726 of 2022)
ii. LR's of Ramji Lal vs. Narendra Kumar
(S.B. Civil Writ Petition No. 11815/2019)
decided on 14.12.2023
18. I have considered the submissions made by learned counsel for the parties, perused the material available on record and gone through the judgments cited at Bar.
19. The core issue which arises for consideration is whether, in execution of a decree for specific performance, the Executing Court can direct delivery of possession even when such relief has not been expressly granted in the decree.
20. A reading of the judgment and decree dated 23.08.2002 shows that the trial court specifically directed the respondent- plaintiff to pay the remaining sum of ₹1,00,000/- to the defendant in accordance with the terms of the agreement dated 17.03.1998. Upon such payment, the defendant was required to execute and register the sale deed for the land in favour of the plaintiff; failing which, the plaintiff would be entitled to have the sale deed executed and registered through the court.
21. The contention advanced by the petitioner that the executing Court has travelled beyond the decree is rejected as being without merit. A decree for specific performance of a contract for sale of immovable property inherently contemplates completion of the (Uploaded on 24/04/2026 at 11:18:00 AM) (Downloaded on 25/04/2026 at 03:32:54 AM) [2026:RJ-JD:19553] (7 of 11) [CW-23499/2025] transaction in its entirety, which includes not only execution and registration of the sale deed but also putting the purchaser in possession, unless the terms of the contract or decree indicate otherwise.
22. In the present case, it is not in dispute that the decree dated 23.08.2002 has attained finality and the sale deed of subject land has already been executed in favour of the decree-holder. Once the title has been conveyed, denial of possession would render the decree itself ineffective and frustrate the very purpose of granting specific performance.
23. The objection raised under Section 47 C.P.C. is, therefore, rightly rejected by the Executing Court, as it does not pertain to execution, discharge or satisfaction of the decree in the true sense, but is an attempt to obstruct its enforcement on grounds which either stood concluded in the suit or are otherwise untenable at the stage of execution.
24. In the case of Manickam @ Thandapani (supra), the Hon'ble Supreme Court has observed as under :-
"29. To examine whether a provision is directory or mandatory, one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. Keeping in view the scheme of the statute, we find that Section 22(2) of the Act is only directory and thus, the decree-holder cannot be non-suited for the reason that such relief was not granted in the decree for specific relief.
30. The defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression "at any stage of proceeding" is wide enough to allow the plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. This Court in Babu Lal has explained the circumstances where relief of possession may be necessary such as in a suit for partition or in a case of separate possession where the property conveyed is a joint (Uploaded on 24/04/2026 at 11:18:00 AM) (Downloaded on 25/04/2026 at 03:32:54 AM) [2026:RJ-JD:19553] (8 of 11) [CW-23499/2025] property. In the suit for specific performance, the possession is inherent in such suit, therefore, we find that the decree-holders are in fact entitled to possession in pursuance of the sale deed executed in their favor."
A coordinate Bench of this Court in LR's of Ramji Lal's case (supra), has observed as under :-
"18. A bare perusal of the judgment and decree dated 07.03.1998 reflects that the Court below, had specifically directed the petitioner defendant to execute the sale deed for the land in dispute and also getting the same registered in favour of the plaintiff while directing the plaintiff-respondent to pay the cost of registration and thus, once, the sale deed is executed and registered, the possession of the land in dispute in favour of the plaintiff-respondent is ancillary and in the absence of any direction given by the Court below while passing the decree in respect to the possession to be handed over to the respondent- plaintiff, it cannot be said that the plaintiff-respondent cannot make a prayer while filing the application for execution of the decree and judgment that the possession of the land in question may be delivered to the plaintiff-respondent. The relief of possession is ancillary to the decree for Specific Performance and need not be specifically claimed.
19. This Court finds that Hon'ble the Apex Court in the case of Hemant Gupta Vs. Ramasubramanian, JJ reported in (2022) 5 SCC 1996, has held that:-
"29. To examine whether a provision is directory or mandatory, one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. Keeping in view the scheme of the statute, we find that Section 22(2) of the Act is only directory and thus, the decree-holder cannot be nonsuited for the reason that such relief was not granted in the decree for specific relief.
30. The defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression "at any stage of proceeding" is wide enough to allow the plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. This Court in Babu Lal has explained the circumstances where relief of possession may be necessary such as in a suit for partition or in a case of separate possession where the property conveyed is a joint property. In the suit for specific performance, the possession is inherent in such suit, therefore, we find (Uploaded on 24/04/2026 at 11:18:00 AM) (Downloaded on 25/04/2026 at 03:32:54 AM) [2026:RJ-JD:19553] (9 of 11) [CW-23499/2025] that the decree-holders are in fact entitled to possession in pursuance of the sale deed executed in their favor.
31. The judgment debtor in the written statement has admitted that the property is a vacant land and that she has sold other portion in favor of one Lakshmipathy. The stand of the judgment debtor now that the respondent is in possession of 750 sq. feet would not defeat the right of possession of 2400 sq. feet of an area which she has agreed to sell to the plaintiffs in respect of which decree was passed. All sales affected, and the construction, if any, raised are subject to lis pendens and no legal or equitable rights arise in favour of the purchasers during the pendency of the proceedings. Therefore, the decree- holders are entitled to actual physical possession of 2400 sq. feet of land which was agreed to be sold to the appellants.
32. The appeal is thus allowed. The order passed by the High Court is hereby set aside. The Executable Court shall ensure that such decree is executed and if any construction is raised on any part of the land agreed to be sold, the possession shall be delivered with or without construction in accordance with law."
20. Thus, in view of the submissions made by learned counsel representing the parties and applying the ratio of the decision given by Hon'ble the Apex Court in the case of Hemant Gupta (supra), this Court is of the opinion that the impugned order dated 16.07.2019 (Annexure-6) passed by Additional District Judge Srikaranpur District Sri Ganganagar in Execution Case No.27/2018 (Narendra Kumar Vs. Ramji Lal & Ors.) does not suffer from any error, illegality or infirmity warranting interference therein, as the court below had specifically directed the petitioner defendant for execution of the sale deed and for the registration of the sale deed as well and thus, once, the sale deed is executed and registered, the possession of the land in dispute is ancillary and in such a case, it is open for the plaintiff/ respondent to make a prayer at the time of filing the execution of decree and judgment for delivery of the possession of the land in question in his favour."
25. The reliance placed by the petitioner on the judgment in Babu Lal's case (supra) is misplaced. In fact, the said judgment recognizes that the Court is empowered to grant possession even at a later stage and that such relief is not barred merely because it was not specifically claimed, particularly when it is incidental to the relief of specific performance. Thus, the said authority, instead of supporting the petitioner, fortifies the case of the respondent.
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26. Similarly, the judgments cited by the petitioner in Adcon Electronics Pvt. Ltd. (supra), Ramdas (supra) and Dhara Singh (supra) are distinguishable on facts. Those cases turned on specific pleadings, nature of relief claimed or procedural limitations at the stage of institution of the suit, and do not lay down an absolute proposition that possession can never be granted in execution if not expressly decreed. None of the said decisions deal with a situation where the decree has been fully acted upon by execution of the sale deed and only consequential possession remains to be delivered.
27. On the contrary, the principle that possession is a natural and consequential relief flowing from a decree for specific performance stands reinforced by subsequent judicial pronouncements, including the decision relied upon by the respondent in Manickam @ Thandapani (supra), wherein it has been held that the Executing Court can grant such ancillary reliefs to make the decree effective.
28. The argument regarding joint and unpartitioned nature of the land also does not advance the case of the petitioner. In view of Section 44 of the Transfer of Property Act, a transferee of a co- sharer's interest is entitled to joint possession and other rights available to the transferor. The Executing Court, by directing delivery of possession, cannot be said to have granted exclusive possession of a demarcated portion contrary to law. The petitioner cannot resist execution on the ground of alleged rights of co- sharers, particularly when such objections were available at the stage of trial and stood impliedly rejected.
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29. The contention regarding pendency of a revenue suit and interim injunction is equally devoid of merit. As rightly pointed out by the respondent, the subject matter of the revenue proceedings is distinct.
30. So far as the plea regarding mortgage in favour of Punjab National Bank is concerned, the same does not create any legal impediment to execution of the decree. The rights of the mortgagee, if any, remain protected in accordance with law, and such plea cannot be used by the judgment-debtor to resist delivery of possession to the decree-holder. In any event, no objection relating to the pendency of a revenue suit, interim injunction, or the alleged mortgage was raised before the Executing Court.
31. This Court also finds that the objections raised by the petitioner are repetitive in nature and aimed solely at delaying the execution of a decree passed more than two decades ago.
32. In view of the foregoing discussion, this Court is of the considered opinion that the impugned order dated 19.11.2025 passed by the Executing Court does not suffer from any jurisdictional error, illegality or perversity warranting interference under Article 227 of the Constitution of India.
33. Accordingly, the writ petition fails and is hereby dismissed.
34. Stay petition as well as all pending application(s), if any, shall also stand disposed of.
(MUKESH RAJPUROHIT),J 79-/Inder//-
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