Gauhati High Court
Page No.# 1/24 vs Ananta Chandra Kalita on 10 December, 2021
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/24
GAHC010040992020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/27/2020
RAJU KALITA AND 3 ORS.
D/O- LT. JOKHA KALITA, R/O- VILL. CHAKAMTALI, NIZ HAJO, P.O. AND P.S.
HAJO, DIST.- KAMRUP, ASSAM, PIN- 781102.
2: GAUTAM KALITA
S/O- DANDIRAM KALITA
R/O- VILL. CHAKAMTALI
NIZ HAJO
P.O. AND P.S. HAJO
DIST.- KAMRUP
ASSAM
PIN- 781102.
3: ANIL KALITA
S/O SRI PRAFULLA KALITA
R/O- VILL. CHAKAMTALI
NIZ HAJO
P.O. AND P.S. HAJO
DIST.- KAMRUP
ASSAM
PIN- 781102.
4: KUSHAL KALITA
S/O- BHABA KALITA
R/O- VILL. CHAKAMTALI
NIZ HAJO
P.O. AND P.S. HAJO
DIST.- KAMRUP
ASSAM
PIN- 781102
VERSUS
ANANTA CHANDRA KALITA
Page No.# 2/24
S/O- LT. ABHAY KALITA, R/O- VILL. CHAKAMTALI, NIZ HAJO, P.O. AND P.S.
HAJO, DIST.- KAMRUP, ASSAM, PIN- 781102.
Advocate for the Petitioner : MR. D C C PHUKAN
Advocate for the Respondent : MR. P S DEKA
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 10-12-2021 Feeling aggrieved by the order dated 20/11/2019 passed by the Court of the Munsiff, Kamrup, Amingaon, Assam in Misc. (J) Case No. 83/2018 arising out of Title Execution No 4/2018, the petitioners are before this Court under Section 115 of the Code of Civil Procedure, 1908.
2. For the purpose of deciding the present lis, it would be relevant to take note of the factual background leading to the passing of the impugned order. The respondent herein had entered into an agreement dated 30/07/2006 with the petitioner No. 1 herein whereby it was agreed that the petitioner No. 1 would sell a plot of land measuring 2 bigha 2 katha 19 lechas to the respondent herein for a consideration of Rs. 1,29,500/- and out of which Rs. 75,000/- was paid as advance. Thereafter as the petitioner No. 1 did not execute the registered Deed of Sale in pursuance to the agreement dated 30/07/2006, for which the respondent herein as plaintiff instituted a suit being Title Suit No. 64/2009 before the Court of the Munsiff No. 1, Kamrup. While the said suit was pending, the petitioner No. 1 made transfer by way of 3 separate Deeds of Sale i.e. Deed No. 600/2009 dated 23/03/2009 in favour of the petitioner No.2 a plot of land measuring 2 katha 19 lechas; by a Deed of sale bearing Deed No. 602/2009 dated 23/3/2009 in favour of the petitioner No. 3 a plot of land measuring 1 bigha Page No.# 3/24 and vide another Deed of Sale bearing Deed No. 601/2009 dated 23/09/2009 in favour of the petitioner No. 4 and land admeasuring 1 bigha, in total vide the said 3 Deeds of sale, the land which was supposed to be sold to the respondent herein vide the agreement dated 30/7/2006 was transferred in favour of the petitioner No. 2,3 & 4 by the petitioner No. 1 during the pendency of the said suit. Accordingly, when the respondent had come to learn about the said transfer by way of sale sought for amendment of the plaint as regards the said subsequent events and the Trial Court permitted such amendment. The Defendant No. 1 who is the petitioner No. 1 herein in spite of receipt of summons did not appear and as such, the suit proceeded ex-parte. However, the defendant Nos. 2, 3 & 4 (the petitioner Nos. 2, 3 and 4herein) filed a joint written statement. At this stage in view of issue so raised during the course of hearing, it would be relevant to quote the Schedule of the amended plaint of Title Suit No. 64/2009, which is as under :-
"S C H E D U L E Land measuring 2 Bighas 2 Kathas 19 Lechas covered by Dag No. 87, K.P. Patta No. 443 of Village-Niz-Hajo under Mouza-Hajo, in the District of Kamrup, Assam, which is bounded by :-
North : Gobat South : Road East : Gobinda Medhi West : Dandi Ram Kalita "S C H E D U L E- A"
(d) Land measuring 2 Kathas 19 Lechas covered by Dag No. 87, K.P. Patta No. 443 of Village-Niz-Hajo under Mouza-Hajo, in the District of Kamrup, Assam, which is bounded by :-
North : Gopanath South : Road East : Kushal Kalita Page No.# 4/24 West : Seller's Land.
(e) Land measuring 1 Bigha covered by Dag No. 87, K.P. Patta No. 443 of Village-Niz-Hajo under Mouza-Hajo, in the District of Kamrup, Assam, which is bounded by :-
North : Nabin South : Gobat East : Road West : Kushal Kalita
(f) Land measuring 1 Bigha covered by Dag No. 87, K.P. Patta No. 443 of Village-Niz-Hajo under Mouza-Hajo, in the District of Kamrup, Assam, which is bounded by :-
North : Gobat South : Anil Kalita East : Anil Kalita West : Gautam Kalita"
3. The Trial Court after framing of issues and the evidence having been led, decreed the suit in favour of the plaintiff/respondent herein vide the judgment and decree dated 27/06/2011. Subsequently thereto admittedly an application was filed on 8/8/2011. A correction was carried out to the decree vide an order dated 23/8/2011. Pursuant to such correction the decree read as follows :-
It is order and decreed that the suit is decree ex-parte with cost against the defendant No-1 and on contest with cost against the vest defendants with the following relief(s):-
(i) a decree declaring that the sale deed Nos. 600/09, 601/09 & 602/09 are liable to be cancelled.
(ii) a decree for specific performance of contract 30-07-06 * in respect of schedule 'A' land.
(iii) a decree for permanent injunction and
Page No.# 5/24
(iv) a decree for the cost of the suit.
4. A perusal of the Schedule A land would go to show that if 3 portions of land are taken up together it is the original Schedule land admeasuring 2 bigha 2 katha 19 lechas, i.e. the land in question in the agreement dated 30/7/2006.
5. Being aggrieved by the said judgment and decree, the petitioner Nos. 2, 3 and 4 preferred an appeal before the Court of the Civil Judge, Kamrup, Amingaon which was registered and numbered as Title Appeal No. 17/2014. The said appeal was dismissed vide the judgment and order dated 20/1/2017 thereby affirming the judgment and the decree passed by the Trial Court on 27/06/2011. Thereupon the petitioner Nos. 2, 3 & 4 approached this Court under Section 100 of the Code of Civil Procedure against the appellate decree dated 20/1/2017 passed by the Court of the Civil Judge, Kamrup, Amingaon. The said appeal was registered and numbered as RSA 191/2017. Vide the judgment and decree dated 07/11/2017 the Regular Second Appeal No. 191/2017 was also dismissed on the ground that there was no substantial question of law involved.
6. The Respondent filed an application seeking execution of the judgment and decree dated 27/6/2011 which was registered and numbered as Title Execution Case No. 72/2017 before the Court of Munsiff. The respondent who is the decree holder prayed for cancellation of the registered Deed Nos. 600/2009, 601/2009, 602/2009 and for execution of the Deed of Sale in respect to Agreement dated 30/7/2006 as well as delivery for of possession. The said execution application was filed before the Court of Munsiff No. 1, Kamrup(Metro), but as in the meantime, the original district of Kamrup was bifurcated into two districts; one Kamrup (Rural) and the other Kamrup (Metro) and Courts have been established separately for the Page No.# 6/24 District of Kamrup(Rural), an application was also filed under Order XXI Rule 5 of the CPC for transferring the decree passed by the Court of the Munsiff No. 1, Kamrup(Metro) to the Court of Munsiff, Kamrup(Rural) at Amingaon. The said application was allowed by the Court of Munsiff No. 1, Kamrup (Metro) and upon transfer to the Court of the Munsiff, Amingaon, Kamrup(Rural), the said execution application was registered and numbered as Title Execution Case No. 4/2018.
7. The petitioners herein who were the Judgment Debtors filed an application under Section 47 of the CPC taking the ground that the decree so passed by the Trial Court and confirmed in appeal by this Court was non-executable. Pursuant thereto the Executing Court passed an order on 6/6/2018 whereby a precept was issued for cancellation of a Deed of Sale bearing Deed Nos. 600/2009, 601/2009 and 602/2009 dated 23/03/2009. The office of the Sub-Registrar, Hajo, Kamrup intimated the Executing Court vide the Communication dated SRA/03/16/1994 dated 18/8/2018 that in pursuance to the order passed by the Executing Court the said Deeds were cancelled. Thereafter, the petitioners herein filed another application under Section 47 of the CPC challenging the executability of the decree and also for recalling the precept issued for cancellation of the Deeds of Sale. At this stage, it may be relevant herein to mention that throughout the suit proceedings, the Defendant No. 1/the petitioner No. 1 herein remained absent in spite of notice issued by the Court joined together with the other three judgment Debtors in filling the application under Section 47 of the CPC.
The respondent herein filed his objection stating inter alia that the application under Section 47 of the CPC was nothing but a ploy adopted by the petitioners to delay the execution proceedings and thereby deprive the respondent to enjoy the fruits of the decree. The Executing Court vide and order dated 20/11/2019 rejected the Section 47 application and Page No.# 7/24 being aggrieved by the adjudication by the Executing Court the petitioners are before this Court in exercise of its revisional jurisdiction.
8. I have heard Mr. D.C.C. Phukan, the learned counsel for the petitioners who submits that the Executing Court erred in law in dismissing the application under Section 47 of the CPC without taking into consideration that the decree which has been passed and wherein the execution has been sought for, is not the original decree, which was passed on 27/6/2011 but a modified decree which had been passed behind the back of the petitioners. In that regard, in order to substantiate his submission he drew the attention of this Court to the judgment enclosed as Annexure-1 to his revision application as well as the decree enclosed as Annexure-2 to the revision application, wherein in the order at Sl. No. (ii) it was only mentioned a decree for specific performance of the contract dated 30/7/2006. He further submits that from the judgment and decree as could be seen from Annexure -A and Annexure-B to the affidavit-in-opposition filed by the respondent, there is an amendment to Sl. No. (ii) whereby it is written a decree for specific performance of the contract dated 30/7/2006 in respect to Schedule-A land. The learned counsel further submits that the said decree cannot be put to execution inasmuch as the said decree is an illegal decree as it is not in compliance to Order XX Rule 12A, which stipulates that it is the requirement when a decree for specific performance of a contract is passed, for the Court to specify the period within which the payment shall be made. He submits that the perusal of the judgment and decree passed by the Trial Court which has been affirmed subsequently do not go to show that there has been compliance to the said provision of Order XX Rule 12A of the CPC. He further submits that the perusal of the plaint as well as the judgment and decree so passed would go to show that there is no decree for delivery of possession and in fact, he submits that it is the Page No.# 8/24 requirement of law in terms with Section 22 of the Specific Relief Act, 1963 that in a suit for specific performance of a contract for transfer of immovable property the person in appropriate cases has to ask for possession and if such relief is not being sought for the court cannot direct delivery of possession. In that regard, he drew the attention of this Court to the translated copy of the application seeking execution and submitted that there is no prayer for delivery of possession in the plaint or in the execution application, and as such the decree holder was not entitled to delivery of possession in respect to Schedule A land. To substantiate his argument Mr. G.C.C. Phukan, the learned counsel for the petitioners relied upon the following two judgments -
(1) Adcon Electronics Pvt. Ltd. Vs. Daulat reported in (2001) 7 SCC 698 more particularly to paragraph 16 and 17.
(2) M/s Vodaphone Spacetel Ltd. Vs. Hazi Abdur Rafique Bepari reported in (2017) 6 Gau LR 288 paragraph 23 and 27 of the said judgment.
9. On the other hand, Mr. P.S. Deka, the learned counsel appearing on behalf of the respondent submits that the application under Section 47 of the CPC filed by the Judgment Debtors/the petitioners herein is nothing but an attempt to delay the execution proceedings and deprive the decree holders to enjoy the fruits of the decree he is entitled under the law. He further submits that the collusive attempt on the part of the Judgment Debtors would be apparent from the fact that the Judgment Debtor No.1 did not appear in spite of service of notice and on the other hand, at this stage after the decree has been passed and subsequently confirmed by the Appellate Court, they are jointly objecting to the execution Page No.# 9/24 proceedings on untenable grounds. He further submits that the instant petition should be dismissed on the ground of suppression of material facts inasmuch as the petitioners had all along knew about the correction made to the judgment passed by the Trial Court in Sl.No. (ii) as well as also in the decree, but in order to mislead this Court by making a submission that the decree holders is trying to execute the Deed of Sale in respect to a land which the decree did no permit. He further submitted that the submission made insofar as Section 22 of the Specific Relief Act as regards the delivery of possession having not been claimed, for which there should not be a decree for delivery of possession, is not applicable to the facts of the instant case, more so, in view of clear enunciation of law by the Supreme Court that this aspect of the matter can be very well be settled by permitting the decree holder to seek for an amendment in a plaint even before the Executing Court in as much as, as per Mr. Deka, the decree for specific performance is in the form of a preliminary decree and the Trial Court still retains the jurisdiction to pass further orders, if so necessary for the purpose of giving effect to the decree. He further submits that even the Executing Court has the power under Section 47 of the CPC in as much as, the Court have been entrusted with the responsibility by the legislature to look into all questions of execution , discharge or the satisfaction of the decree. In support of his submission, he relies upon the following judgments.
(i) Babu Lal Vs. M/s Hazari Lal Kishori Lal and Ors.
reported in (1982) 1 SCC 525 (Paragraphs 10 to 14, 17, 19, 20, 21 &
23)
(ii) Zafar Mia Vs. Smt. Quiser Zahan Begum reported in AIR 2007 All 5 (Paragarphs 6,7 & 8) Page No.# 10/24
(iii) Benoy Gopal Saha Vs. On the death of Satyesh Ch. Poddar, His Legal Heirs Subinoy Poddar and Ors. reported in (2017) 6 Gau GLR 842.
10. I have heard the learned counsel for the petitioners and after hearing the learned counsel for the petitioners and taking into account the impugned order, which has been passed, three questions arise for determination which are:-
(A) Whether the decree can be executed by executing a Deed of Sale in favour of the decree holder in respect to the Schedule A land ?
(B) Whether the decree is no executable in view of non-compliance of the provisions of Order XX Rule 12A of the Code of Civil Procedure, 1908 ?
(C) Whether in absence of the relief for possession sought for in the suit can the Executing Court deliver possession in favour of the decree holder ?
11. Question No. 1. Whether the decree can be executed by executing a Deed of Sale in favour of the decree holder in respect to the Schedule A land ?
From the records as available before this Court and the admitted fact that the Trial Court below corrected the Judgment and the Decree by an order dated 23/08/2011 and the said aspect of the matter, having already attained finality I am of the opinion that the Executing Court cannot go behind the said Decree and consequently would be within its powers to grant specific performance of the agreement dated 30/7/2002 in so far as the Schedule A land is concerned. This opinion of mine is based upon the well settled principle of law that the Executing Court has the authority not only to look into the judgment and decree passed by the Courts below but also the pleadings of the parties which led to the judgment Page No.# 11/24 and decree being passed. In the instant case as already stated herein above there was an amendment to the plaint in pursuance to the sale of original schedule land in favour of the Judgment Debtor Nos. 2, 3 and 4 by the Judgment Debtor No. 1 by three Deeds of Sale during the pendency of the suit and the total area of the Schedule A land is same with the original Schedule land. In other words, the Schedule A land comprises of 3 plots of land which together is the land as described in the Schedule to the original plaint and is also the land as mentioned in the agreement dated 30/7/2006. Whether the correction was rightly done or not, which is my opinion was rightly done, cannot be looked into by the Executing Court. The said objection in my opinion as regards the description of the said Schedule property is bogey to delay the execution of the decree by the abusing the process of the Court. In this regard, the judgment of the Supreme Court rendered in the case of Ravinder Kaur Vs. Ashok Kumar and Anr. reported in (2003) 8 SCC 289 and more particularly to paragraph 22 being relevant is quoted herein below :-
"22. All these facts apart, we notice that nowhere in the petition the respondents- tenants claim to be in possession of any shop other than Shop No. 3 in regard to which they have suffered an eviction order. It is not their case that they are also in possession of some other property in regard to which there is no eviction order but the landlord is trying to take possession in these execution proceedings. We have specifically asked the learned counsel appearing for the respondents that apart from Shop No.3 belonging to the appellant - are the respondents in possession of any part of property bearing No. EK 172/2 situated at Chowk Panjeer, Jalandhar. The learned counsel was not able to give any satisfactory reply to our question which would only mean that the respondents are not in possession of any other property other than Shop No.3 leased out to them in the above-mentioned property belonging to the appellant. That is also why they prayed for restoration of possession. Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system."
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12. From the above quoted portion of the said judgment, it would be clear that the Supreme Court had observed that Courts of law should be careful enough to see through such diabolical plans of the Judgment-Debtors to deny the decree-holders the fruits of the decree obtained by them. The Supreme Court further observed that these type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bring bad name to the judicial system. In the instant case, a perusal of paragraph 2 of the amended plaint would clearly go to show that it has been specifically mentioned that the agreement dated 30/7/2006 was in respect to the Schedule A land and the decree for specific performance was sought in respect to Schedule A land. The Trial Court while delivering the judgment originally on 27/6/2011 ought to have been more careful in passing the order in terms with the relief (a) sought for in the plaint and having not done so, it led to the correction being made subsequently and this correction had resulted in raising all such bogus objection by the Judgment-Debtor in order to delay the execution of the decree. Accordingly, the first question is therefore decided holding inter alia that the specific performance of the agreement dated 30/7/2006 would be in respect to the Schedule A land which comprises of the 3 plots of land together measuring 2 bigha 2 katha 19 lecha.
13. Question No. (2) Whether the decree is executable in view of non- complaince the provisions of Order XX Rule 12A of the Code of Civil Procedure, 1908 ?
The second question which arises is as to whether the judgment and decree passed by the Trial Court and affirmed by this Court is an inexecutable decree on the ground that the said Decree was passed without following the provision of Order XX Rule 12A of the CPC. It is no longer res integra that for a decree to become inexecutable the decree so passed has to Page No.# 13/24 be "null and void". The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such Court would be without jurisdiction, non est or void-ab-initio. A defect of jurisdiction of the Court goes to the root of the matter and effect the very authority of the Court to pass a decree or make an order. Such a defect has always been treated as a basic and fundamental and a decree or order passed by an authority having no jurisdiction is a nullity. Validity of such a defect or order can be challenged at any stage even in execution proceedings. However, if a decree is passed by a court having jurisdiction over the subject matter of a suit by not taking into consideration certain relevant provisions of law, the decree so passed would at best be wrong. In other words, it is well settled that the court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. If a party is aggrieved but does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. The Supreme Court in the Case of Rafique Bibi (Dead) by LRs Vs. Sayed Waliuddin reported in (2004) 1 SCC 287 had the occasion to deal with the distinction between "null and void decree" and "illegal decree". Paragraph 6 to 9 of the said judgment being relevant are quoted herein below .
"6. What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such nullity based on want of jurisdiction; else the normal rule that an executing Court cannot go behind the decree must prevail.
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7. Two things must be clearly borne in mind. Firstly, the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense; their meaning is relative, depending upon the Court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results. (Administrative Law, 8th Edition, 2000, Wade and Forsyth, p. 308). Secondly, there is a distinction between mere administrative order and the decrees of Courts, especially a superior Court. The order of a superior Court such as the High Court, must always be obeyed no matter what flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for contempt of Court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time limit. (Ibid, p. 312).
8. A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any callateral attack or in incidental proceedings.
9. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors., [1970] 1 SCC 670, it has been held :-
"When the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
14. The judgment of the Supreme Court rendered in the case of Ittyavira Mathai Vs. Varkey Varkey and Anr. reported in AIR 1964 SC 907 at paragraph No. 8 have clearly sought to differentiate a wrong decision with the decision which is a nullity and the said paragraph for the sake of convenience is quoted herein below :-
"8. The first point raised by Mr. Paikedy for the appellant is that the decree in O. S. No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuming that the suit was barred by time, it is difficult to Page No.# 15/24 appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullifies. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul -Ahmed v. Onkar Pratap Narain, and contended that since the court is bound under the provisions of s. 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All the decision relied upon says that s. 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The privy council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."
15. From the above proposition of law as enunciated by the Supreme Court, it is clear that if a court having jurisdiction over the subject-matter of the suit and over the parties thereto, decides the lis wrongly by not taking into consideration certain relevant provisions of law, the judgment so passed can be said to be a wrong decision but not a nullity and thereby the decree would be executable, unless the said Decree has been set aside by a Competent Court of jurisdiction. The contention that the Court below while passing the decree did not comply with the provisions under Order XX Rule 12A of the CPC and thereby did not specify the period within which the payment has to be made, cannot in my opinion renders the Decree a nullity and accordingly non executable. The Decree so passed at best can said to be a mistake being committed by the Court. In this regard, it is also relevant to point out that the petitioners never raised the issue before the appellate forum as well as the 2 nd appellate Page No.# 16/24 forum and had that issue been raised, the First Appellate Court or the Second Appellate Court could have passed appropriate directions in terms with Order XX Rule 12 A of the CPC. Therefore the contention that the decree has become inexecutable in view of the non- compliance to Order XX Rule 12A of the CPC, in my opinion also does not hold good. Further to that as would be seen from a discussion made in respect to point No. 3, a decree for specific performance is in the nature of preliminary decree and as such the direction as envisaged made. Order XX Rule 12A of the CPC can very well be passed by the Executing Court, if need be.
16. In view of the above, I am of the opinion that the decree so passed is executable.
17. Question no. 3 Whether in absence of the relief for possession sought for in the suit, can the Executing Court deliver possession in favour of the decree holder ?
The third question which arises out here is as to whether without there being no decree for delivery of possession would the Executing Court have the jurisdiction to deliver for possession of the Schedule A land pursuant to the execution of the Deed of Sale in favour of the decree-holder. To answer the said question one needs to see as to what is a decree of specific performance of contract? It is well settled that a court which passes a decree for specific performance of contract retains control even if the decree has been passed. As far back is in 1927, the case of Madras High Court in its Judgment delivered in the case Mahommadalli Sahib Vs. Abdul Khadir Saheb reported in 1927 SCC Online 135 held that the court which passes a decree for specific performance has the power to extend the time fixed in the decree for the reason that Court retains control over the decree; that the Page No.# 17/24 contract between the parties is not extinguished on passing of the decree for specific performance and that the contract subsists notwithstanding the passing of the decree the power of the court under Section 28 of the Specific Relief Act, to rescind the contract. This would lead to only one conclusion that a decree passed in a suit for specific performance is in the nature of a preliminary decree. Fry in his Treatise on Specific Performance, 6 th edition at page 546.
"It may and not unfrequently does happen that after judgment has been given for the- specific performance of a contract, some further relief becomes necessary, in consequence of one or other of the parties making default in the performance of something which ought under the judgment to be performed by him or on his part; as for instance, where a vendor refuses or is unable to execute a proper conveyance of the property, or a purchaser to pay the purchase money.....
There are two kinds of relief after judgment for specific performance of which either party to the contract may, in a proper case, avail himself :
(i) He may obtain (on motion in the action) on order appointing a definite time and place for the completion of the contract by payment of the un-paid purchase-money and delivery over of the executed conveyance and title deeds, or a period within which the judgment is to be obeyed, and, if the other party fails to obey the order, may thereupon at once issue a writ of sequestration against the defaulting party's estate And effects........"
(ii) He may apply to the Court (by motion in the action) for an order rescinding the contract. On an application of kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered; otherwise, the order will be for rescission default of completion within a limited time......"
18. Similarly in Halsbury's Laws of England 3rd Edition Volume 36 the law is stated as under :-
"Ancillary relief may be obtained after judgment in an action for specific performance where such further relief becomes necessary..................... Either party may also obtain an order rescinding the contract in default of completion within a fixed time."
19. The proposition of law had received the approval of the Supreme Court in the case of Page No.# 18/24 Hungerford Investment Trust Limitation (Involuntary Liquidation) vs Haridar Mundhra & Ors. reported in (1972) 3 SCC 684 as well as in the case Rajinder Kumar Vs. Kuldeep Singh And Ors. reported in (2014) 15 SCC 529, whereby the Supreme Court held that in respect to a decree passed relating to specific performance, the court passing the decree continues to exercise the jurisdiction till the said decree has been fully satisfied. The issue involved in the instant proceeding as to whether in absence of the relief for delivery of possession can the Executing court deliver possession is also no longer res integra in view of the judgment of the Supreme Court rendered in the case of Babu Lal Vs. M/s Hazari Lal Kishori Lal and Ors.(supra) wherein the Supreme Court while dealing with Section 22 of the Specific Relief Act, 1963 observed that the said Section enacts a rule of pleading. The legislature thought it would be useful to introduce a rule 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 a suit for specific performance is decreed. In this regard, paragraphs 11, 12, 13 & 14 of the judgment rendered in Babu Lal are quoted herein below :-
"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 Page No.# 19/24 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, as 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 no 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 lief 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 t share of the defendant. It is in such cases that a relief for possession must be specifically pleaded."
20. In the said judgment, it has been categorically held that a mere relief for specific performance of the contract of sale would 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. However in a case where exclusive possession is with the contracting party, or with a person claiming under the contracting party, a decree for specific performance of the Page No.# 20/24 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 the contracting party completely the said contracting party is bound not only to execute the sale deed but also to put the property in possession of the decree holder. This is in compliance 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 possession of the property as its nature admits. However, there may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, i.e. where the property is agreed to be conveyed is jointly held by the defendant with other person. 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 only in such a case that the relief for possession must be specifically pleaded. The Supreme Court had further observed that the words 'in an appropriate case' as appearing in Section 22 indicates that it not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for a transfer of an immovable property; that has to be done where circumstances demanding the relief of specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. Further to that, the Supreme Court also observed in the said judgment that the proviso to sub-section (2) of Section 22 provides for amendment of plaint on such terms as may be just for including a claim for such relief at any stage of the proceeding. In that regard Page No.# 21/24 paragraph 17,18,19,20,21 and 22 being relevant is quoted herein below :-
17. The word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process, any act done by authority of a court of law; any step taken in a cause by either party". The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in section 22 includes execution proceedings also. In Rameshwar Nath v. Uttar Pradesh Union Bank such a view was taken. It is a term giving the widest freedom to a court of law so that it may do justice to the parties in. the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It makes a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution.
18. In Mahender Nath Gupta v. M/s. Moti Ram Rattan Chand and Anr the Delhi High Court endorsed the view taken in Balmukand v. Veer Chand (supra) that where in a suit for specific performance of the contract for sale relief for possession is not claimed and consequently the decree passed in the suit contains no relief for delivery of possession. the court executing the decree is competent to deliver possession, an order directing delivery of possession being merely incidental to the execution of the deed of sale. The court however, observed that on March 1, 1964 Specific Relief Act of 1963 came into force and this Act altered the law by enacting section 22. It made it necessary for the plaintiff to ask specifically the relief of possession in suits for specific performance. The Court, however, held that section 22 of the Specific Relief Act of 1963 had no application to that case as the decree was passed when the old Act was in force.
19. The same High Court, however, in M/s. Ex-Servicemen Enterprises (P) Ltd. v.
Sumey Singh considered the effect of section 22 (2) with its proviso. In that case the decree did not give the plaintiff the relief of possession. The question arose. Was the Court powerless to put him in possession of the property though he had a decree for specific performance in his favour ? The Delhi High Court observed:
"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 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.
In my opinion the proviso gives ample power to a court to allow the amendment of the plaint even at this stage. The proviso says that the amendment of the plaint can be allowed "at any stage of the proceedings" on such terms as may be just for including a claim for possession where the plaintiff has not claimed such relief in his original plaint.
Page No.# 22/24 The term "proceeding" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which Judicial business is conducted.
The word "proceeding" in Section 22 in my opinion includes execution proceedings also."
The High Court had relied upon Rameshwar Nath v. UP Union Bank (Supra) for its decision in this case. We are in complete agreement with the view taken by the Delhi High Court in this case.
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.
23. There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession The objection of the petitioner is hyper-technical. The execution court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession the High Court should have allowed an amendment in the Plaint. The mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when section 55 of the Transfer of property Act authorises the transferee to get possession in pursuance of a sale deed. "
21. Thus a combined readings of the judgment in the case of Hungerford Investment Trust Ltd. (supra) and Babu Lal Vs. M/s Hazari Lal Kishori Lal and Ors.(supra), one can discern that the decree passed by the Court in a suit for specific performance is in the nature of a Page No.# 23/24 preliminary decree and the court continues to exercise jurisdiction over the lis till the time the decree is fully satisfied meaning thereby till the execution and registration(if any) of a document for which the specific performance have been granted coupled with delivery of possession (if required). It can also be seen that the said relief for delivery of possession is not required if the contracting party is in possession or anyone claiming under him. The term " at any stage of the proceedings" would also include the execution proceedings and as such if the relief for possession is required in a suit for specific performance the parties seeking specific performance for transfer of the property in their favour can claim the relief of possession even by filing an application seeking insertion of the relief of delivery of possession by amendment of the plaint even before the Executing Court. It is also relevant to take note of the submission made by the learned counsel of the petitioners by placing reliance upon the judgment of the Supreme Court rendered in the case of Adcon Electronic Pvt. Ltd.(supra) more particularly paragraph Nos. 16 and 17 to the effect that no court can grant the relief of possession of the land or other immovable property unless the possession of the immovable property is specifically prayed for. The said observations made are in the facts of that case as well as in reference to a proceedings to decide whether the suit in question was a "suit of the land." The law laid down therein would not be applicable in the facts and circumstances of the instant case.
22. Let me now take the facts of the instant case. The Petitioner No.1 admittedly had entered into the Agreement dated 30.07.2006 for sale of the Schedule land as originally described in the plaint. The Petitioner Nos. 2, 3 & 4 have purchased the Schedule land vide the three Deeds of sale which have already been cancelled during the pendency of the suit proceedings and as such the doctrine of lis pendens would squarely apply. Under such Page No.# 24/24 circumstances even in absence of a relief of delivery of possession in the suit, the Executing Court would be within its jurisdiction to deliver possession of the Schedule A land to the Decree Holders in view of the observations made herein above.
23. In view of the above, the instant petition stands dismissed and the Executing Court is directed to proceed with the execution of the decree in accordance with law. The impugned order dated 20.11.2019 passed in Misc(J) case No. 83/2018 stands confirmed, however, for reasons assigned herein above. No costs.
JUDGE Comparing Assistant