Andhra HC (Pre-Telangana)
Smt.Sarverunnisa Begum vs Syed Rafeeq on 9 March, 2015
Author: A.V.Sesha Sai
Bench: A.V.Sesha Sai
THE HONBLE SRI JUSTICE A.V.SESHA SAI C.R.P.No.3435 of 2014 9-3-2015 Smt.Sarverunnisa Begum.....Petitioner Syed Rafeeq .....Respondents Counsel for the Petitioner: Sri D.V.N.Acharya Counsel for the Respondent : Sri Nimmagadda Satyanarayana <Gist: >Head Note: ?Cases referred: 1. (2001) 7 SCC 698 2. AIR 2014 Cal 230 3. 2012 Law Suit (Mad) 2317 4. AIR 2001 SC 2984 5. 2014 Law Suit (SC) 45 6. AIR 2014 SC 1400 7. AIR 1982 SC 818 8. 2012(3) ALD 682 9. 2007(1) APLJ 186 (HC) 10. 2011(3) ALD 577 11. 1999(5) ALT 499 12. AIR 1973 Mysore 131 13. AIR 1954 ALL 643 14. AIR 1985 BOM 412 15. AIR 1983 CAL 51 16. AIR 1974 MAD 289 17. AIR 1977 ALL 156 18. AIR 1978 KER 236 THE HONBLE SRI JUSTICE A.V.SESHA SAI C.R.P.No.3435 OF 2014 ORDER:
1. Judgment debtor in E.P.No.10 of 2011 in O.S.No.9 of 2009 on the file of the Court of the I Additional District Judge, Karimnagar is the petitioner in the present revision filed under Section 115 of the Code of Civil Procedure. In the present revision, challenge is to the order dated 9.7.2014 passed by the said Court, directing delivery of the schedule property covered by the suit agreement of sale.
The facts and circumstances, leading to the filing of the present revision are as infra:
2. Respondent herein instituted O.S.No.9 of 2009 against the petitioner on the file of the Court of the I Additional District Judge, Karimnagar for specific performance of Agreement of Sale dated 12.11.2007. The learned Judge decreed the suit on 29.4.2011. Thereafter the decree holder/respondent filed E.P.No.10 of 2011 for execution of sale deed and delivery of possession. The Court below executed registered sale deed on 18.3.2012. In the said execution proceedings, respondent herein filed E.A.No.1 of 2013 for delivery of the subject property. Judgment debtor/petitioner herein filed a counter affidavit, resisting the said application. The learned Judge, by way of an order dated 9.7.2014, allowed the said application and directed the bailiff to deliver the possession of the subject property.
3. Calling in question the validity and the legal sustainability of the said order dated 9.7.2014, the present revision has been filed under Section 115 of the Code of Civil Procedure.
4. Heard Sri D.V.N.Acharya, learned counsel for the petitioner and Sri Nimmagadda Satyanarayana, learned counsel for the respondent apart from perusing the material available on record.
5. Contentions/submissions of the learned counsel for the petitioner:
(1) The order impugned in the present revision is erroneous, contrary to law and opposed to the very spirit and object of the provisions of the Specific Relief Act, 1963.
(2) In view of the provisions of Section 22 of the Specific Relief Act, 1963, the order passed by the Court below is totally one without jurisdiction. (3) In the plaint, no relief for delivery of possession was sought nor the Court passed decree for delivery of possession and as per Section 22(1)(a) of the Specific Relief Act, no relief was claimed nor the proviso to Section 22 was invoked and made use of, as such, the Court below erred in ordering delivery of property.
(4) Since there is no decree granted by the original Court, the executing Court grossly erred in ordering delivery of property in execution and it is a settled law that the executing Court cannot travel beyond the decree.
(5) The reasons assigned by the Court below in the order under revision are not in confirmity with the ratio laid down in various authoritative pronouncements.
To bolster his submissions and contentions the learned counsel for the petitioner places reliance on the following judgments:
(i) Adcon Electronics Pvt. Ltd., v. Daulat and another
(ii) Gloster Limited v. Bowreah Jute Mills Private Limited and other .
(iii) Durisamy and others v. V.P.Periyasamy Gounder and others .
(iv) Anwar Hasan Khan v. Mohammed Shafi and others
(v) Dipak Babaria and another v. State of Gujarat and
others
(vi) Hardeep Singh v. State of Punjab and others
6. Contentions/submissions of the learned counsel for the respondent:
(1) The order under revision is in accordance with law and there is no illegality nor any material infirmity in the impugned order and in the absence of the same present CRP is liable to be dismissed.
(2) In the absence of any specific clause also for recovery of possession in a decree for specific performance of agreement of sale, the executing Court is empowered to order delivery of property covered by suit agreement of sale.
(3) The order under challenge is in accordance with the provisions of Section 55 of the Transfer of Property Act and Section 28 of the Specific Relief Act, 1963.
(4) The area of operation of Section 22 is completely and entirely different and the sub-section (1)(a) of Section 22 cannot be applied for the instant case and the respondent decree holder cannot be deprived of the fruits of the decree which has become final.
To substantiate and strengthen his submissions and contentions, the learned counsel for the respondent takes the support of the following decisions:
(i) Babu Lal v. M/s Hazari Lal Kishori Lal and others
(ii) Mr.Nakshtrapum Venkateswarlu v. Smt. Bathula Ankamma and others
(iii) Smt.Suluguru Vijaya and others v. Pulumati Manjula .
(iv) Kalivarapu Lakshmi Kumari v. Burada Appalanaidu
(v) V.Narasimha Chary v. P.Radha Bai and others
(vi) Mohammed Ali Abdul Chanimomin v. Bisahemi Kom
Abdulla Saheb Momin and another
(vii) Balmukund v. Veer Chand
(viii) Lotu Bandu Sonavane v. Pundalik Nimba Koli
(ix) Debabrata Tarafder v. Biraj Mohan Bardhan
(x) S.S.Rajabathar v. N.A. Sayeed
(xi) Gyasa v. Smt.Risalo
(xii) Narayana Pillai Krishna Pillai v. Ponnuswami Chettiar Subbalekshmi Ammal
7. In above back ground now the issues, which this Court is called upon to answer in the present revision are;
(1) Whether the learned Additional District Judge is justified in ordering delivery of the schedule property covered by the suit agreement of sale dt.12-11-2007 ?
(2) Whether the order impugned is vitiated in view of the provisions of Section 22 of the Specific Relief Act ?
(3) Whether the order under revision is in accordance with the provisions of Section 55 of the Transfer of Property Act, 1882 ?
8. The provisions of law which are germane and relevant for the purpose of resolving the issues in the present revision are Sections 22 and 28 of the Specific Relief Act, 1963 and Sections 55 (1) of the Transfer of Property Act, 1882. Sections 22 and 28 of the Specific Relief Act, 1963 read as infra:
Section 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 or2[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:
Provident 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 section 21.
Section 28 - Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed (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 lessee 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 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 the lessee as earnest money or deposit in connection with the contract.
(3) If the purchase 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.
(5) The costs of any proceedings under this section shall be in the discretion of the court.
9. Section 55 of the Transfer of Property Act, 1882 reads as infra:
Rights and liabilities of buyer and seller In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:
(1) The seller is bound-
(a) to disclose to the buyer any material defect in the property1[or in the seller's title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller s possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.
(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:
Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller's possession or power:
Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buyer of the lot of greatest value is entitled to such documents. But in case
(a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.
(4) The seller is entitled-
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer,1[any transferee without consideration or any transferee with notice of the non-payment], for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part1[from the date on which possession has been delivered].
(5) The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the seller's interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.
(6) The buyer is entitled-
(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him,2[ * * *] to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount;
and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.
An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a) and paragraph (5), clause (a), is fraudulent.
10. In the instant case, absolutely there is no controversy with regard to the realities that the learned I Additional District Judge, Karimnagar decreed the suit on 29.4.2011, directing the petitioner herein to execute registered sale deed in respect of the land covered by the suit agreement of sale dated 12.11.2007 and that the said decree has attained finality in view of non filing of any appeal against the said decree. The only objection of the judgment debtor is that as the decree holder did not seek the relief of possession as stipulated under Section 22(1)(a) of the Specific Relief Act, 1963 and as there is no decree for recovery of possession, the decree holder/respondent is not entitled for possession in execution. On the contrary it is the case of the decree holder that in view of the provisions of Section 28 of the Specific Relief Act, 1963 and Section 55(1)(f) of the Transfer of Property Act, 1882 the objection of the petitioner/judgment debtor cannot stand for judicial scrutiny and liable to be rejected. These aspects are required to be examined in the light of various pronouncements of the Hon'ble Apex Court and various High Courts.
11. In Adcon Electronics Pvt. Ltd., v. Daulat (1 supra), the Hon'ble Supreme Court at paragraphs 16 to 18 held as under:
16. In a suit for specific performance of contract for sale of immovable property containing 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 plant, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as my 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 relief of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) 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 of 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.
18. In the instant case the suit is for specific performance of agreement for sale of the suit property wherein relief of delivery of the suit property has not been specifically claimed as such it cannot be treated as a "suit for land".
12. In Gloster Limited v. Bowreah Jute Mills Private Limited (2 supra), a Division Bench of the Calcutta High Court following the judgment of Apex Court in Adcon Electronics Pvt. Ltd. v. Daulat (1 supra), at paras 21 and 22 held thus:
21. We have considered the rival contentions of the parties. A 'suit for land' is essentially a suit which involves direct adjudication of title and/or possession in respect of land or other immovable property. If a decree or order passed in a suit indirectly and/or consequentially affects title to and or possession in respect of land, the suit cannot be said to be a 'suit for land'. A suit for specific performance of a contract for sale of immovable property without any prayer for possession has been held to be not a 'suit for land' by our Apex Court in Adcon Electronics Pvt.
Ltd. (supra), although the decree in the suit may indirectly affect title to the concerned immovable property. By reverse analogy a suit for delivery up and cancellation of an agreement relating to immovable property without any prayer for possession should also not be a 'suit for land' even though the decree in the suit may indirectly or consequentially affect title or possession to land. The Division Bench decision of this Court in the case of Debendra Nath Chowdhury (supra) also lends support to this view.
22. In view of the aforesaid, with the deepest regard we have for the learned Judge, we are unable to agree with His Lordship that in spite of plaintiff/appellant having given up prayers (b) and (c) of the plaint, prayer (a) of the plaint would still make the suit a 'suit for land'. The appeal succeeds. The judgment and order impugned is set aside. The plaintiff will be at liberty to proceed with its suit shorn of prayers (b) and (c) of the plaint. The cross-objection filed by the defendant no. 2 has not been seriously pressed. In any event, we do not find any merit in the grounds enumerated in the cross-objection. The cross-objection fails and is dismissed. In the facts and circumstances of the case there will be no order as to costs.
13. In Durisamy v. V.P.Periyasamy Gounder (3 supra), the Madras High Court at paragraphs 13, 15 & 16 held as under:
13. The other contention of the learned counsel for the revision petitioners would be that the Hon'ble Apex Court in its judgment reported in AIR 2001 SC 3712 = 2002-1-L.W. 368 in between Adcon Electronics Pvt. Ltd. v. Daulat has categorically laid down that the plaintiffs in the suit for specific performance cannot seek for possession when they failed to pray for the relief of possession in the suit. The relevant passage relied upon by the learned counsel for the revision petitioner would run as follows:
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.
In the said dictum, it has been categorically laid down that the relief of possession of a land or other immovable property, subject matter of the agreement for sale in a suit for specific performance cannot be claimed or granted by the Court unless the possession of such immovable property was specifically prayed for. It has been further found by the Hon'ble Apex Court in the said judgment that the suit filed by the plaintiffs was not a suit for land, since possession was not asked for in the said suit. It has been categorically found by the Hon'ble Apex Court that the suit for specific performance in simplicitor is not a suit for land under the meaning of Clause 12 of the Letters Patent and thus, it has been found that the suit for specific performance of a contract for sale of immovable property was found to be a suit on a personal contract in between parties. The reliance placed by the learned counsel for the plaintiffs reported in AIR 2001 SC 3712 = 2002-1-L.W. 368 cited supra was applicable only in the appropriate cases which were mentioned in Section 22 of the Act and, therefore, it was found that the relief of possession should have been asked for in the plaint by the plaintiffs. He would submit that so far as the present case on hand is concerned, it is not attracted under the cases mentioned in Section 22 and hence, the said dictum is not applicable. The further contention is that the ruling given in the judgment reported in AIR 1982 SC 818 = (1982) 95 L.W. 106 S.N. in between Babu Lal Vs. M/s, Hazari Lal Kishori Lal alone is applicable since the present case is not coming under the definition of an appropriate case. The relevant passage which was relied upon by the learned counsel for the respondents/plaintiffs in the said judgment would be as follows:
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 visualised 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 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. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simplicitor, 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 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.
16. It may be pointed out that the Additional Civil Judge had decreed the suit for specific performance of the contract. The High Court modified the decree to the extent that the sale deed was to be executed by respondents Nos. 6 to 9 together with petitioner. In short, the decree was passed by the High Court not only against respondents Nos. 6 to 9 but also against the subsequent purchaser i.e., the petitioner and thus the petitioner was himself the judgment -debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed. The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases. This argument ignores the significance of the words 'in an appropriate case'. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immoveable property. That has to be done where the circumstances demanding the relief for 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. Besides, the proviso to sub-sec(2) of S. 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief 'at any stage of the proceedings.
14. .
15. The petitioners cannot have any say in amending the plaint as well as the decree which was passed against the defendants. Therefore, they have no locus standi to object if the respondents/plaintiffs are asking for any amendment in the plaint as well as in the decree. Therefore, while relying upon the dictum rendered in 2006 2 MLJ 350 in between N.K. Jinnah Vs. K.P. Krishnan, the lower Court should permit the respondents/ plaintiffs to amend the plaint as well as the decree including the prayer for possession of the said property in accordance with the judgments of Hon'ble Apex Court made in AIR 1982 SC 818 = (1982) 95 L.W. 106 S.N. and 2001 AIR SC 3712 = 2002-1-L.W. 368 cited supra. Therefore, this Court finds that the order passed by the lower Court is liable to be interfered with, but with certain directions. Since the procedure as contemplated under Section 22 of the Act is meant to advance the cause of justice and it is only an enabling provision in order to avoid multiplicity of proceedings, it has become necessary for this Court to direct the respondents/plaintiffs to amend the plaint in order to add the relief for possession as contemplated in the provisions of Section 22 of the Act and shall the decree shall also consequentially be amended and thereafter to claim delivery of possession against the judgment debtors. It has been categorically mentioned in the said judgment of Hon'ble Apex Court in para 20, that the amending the plaint can be done at any stage which includes the stage of execution.
16. Therefore, this Court is inclined to interfere with the order passed by the lower Court and set aside the same with a direction to permit the respondents/plaintiffs to amend the plaint and, the decree for the relief of possession, and thereafter, to continue the execution petition filed by the respondents/ plaintiffs, in view of the long period lapsed due to the pendency of proceedings. The lower Court is also directed to keep the execution proceedings pending awaiting the amendment of the plaint as well as the decree and after receiving the amended decree, to continue the said proceedings and to pass suitable orders thereon. With the aforesaid directions, the order passed by the lower Court is set aside and the Civil Revision Petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.
14. In Anwar Hasan Khan v. Mohammed Shafi (4 supra), the Hon'ble Apex Court at paragraph 8 held as under:
8. It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute has to be gathered from the text, the nature of the subject matter and the purpose and intention of the statute. It is cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding the conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provision to a "dead letter" is not harmonious construction. With respect to law relating to interpretation of statute this Court in Union of India & Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (1990)1SCC277 held:
The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. "Words are certainly not crystals, transparent and unchanged" as Mr. Justice Holmes was wisely and properly warned (Towne v. Eisner(1918) 245 US 418 learned (sic)and, J., was equally emphatic when he said" :
"Statutes should be construed, not as theorems of Euclid, but with some imagination of the purpose which lie behind them."
(Lenigh Valley Coal co. V. Yensavage 218 FR 547.
15. In Dipak Babaria v. State of Gujarat (5 supra), the Hon'ble Supreme Court at paragraph 53 held as under:
53. It is well settled that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. This proposition of law laid down in Taylor v.
Taylor (1875) 1 Ch D 426, 431 was first adopted by the Judicial Committee in Nazir Ahmed v. King Emperor reported in AIR 1936 PC 253 and then followed by a bench of three Judges of this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh reported in AIR 1954 SC 322. This proposition was further explained in paragraph 8 of State of U.P. v. Singhara Singh by a bench of three Judges reported in AIR 1964 SC 358 in the following words:
8. The rule adopted in Taylor v. Taylor is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted....
This proposition has been later on reiterated in Chandra Kishore Jha v. Mahavir Prasad reported in 1999 (8) SCC 266,Dhananjaya Reddy v. State of Karnataka reported in 2001 (4) SCC 9 and Gujarat Urja Vikas Nigam Limited v. Essar Power Limited reported in 2008 (4) SCC 755.
16. In Hardeep Singh v. State of Punjab (6 supra), the Hon'ble Apex Court at paragraphs 40 and 41 held as under:
40. The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein.
The court cannot re-write, recast or reframe the legislation for the reason that it has no power to legislate.
41. No word in a statute has to be construed as surplusage. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the Statute. By construction, a provision should not be reduced to a "dead letter" or "useless lumber". An interpretation which renders a provision an otiose should be avoided otherwise it would mean that in enacting such a provision, the legislature was involved in "an exercise in futility" and the product came as a "purposeless piece" of legislation and that the provision had been enacted without any purpose and the entire exercise to enact such a provision was "most unwarranted besides being uncharitable." (Vide: Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao Jambekar and Anr. : AIR 1965 SC 1457; The Martin Burn Ltd. v. The Corporation of Calcutta: AIR 1966 SC 529; M.V. Elisabeth and Ors. v. Harwan Investment and Trading Pvt. Ltd. Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa : AIR 1993 SC 1014; Sultana Begum v. Prem Chand Jain : AIR 1997 SC 1006; State of Bihar and Ors. etc. etc. v. Bihar Distillery Ltd. etc. etc. : AIR 1997 SC 1511; Institute of Chartered Accountants of India v. Price Waterhouse and Anr. : AIR 1998 SC 74; and The South Central Railway Employees Co-operative Credit Society Employees Union, Secundrabad v. The Registrar of Co- operative Societies and Ors.: AIR 1998 SC 703).
Coming to the judgments cited by the learned counsel for the respondent/decree holder
17. In Babu Lal v. M/s Hazari Lal Kishori Lal (7 supra), the Hon'ble Supreme Court at paras 11 to 16, 26 & 29 held as under:
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-with standing anything contained in the CPC, 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 of Separate possession 'in an appropriate case'. As pointed out earlier; in view of Order 2, Rule 2 of the CPC, 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 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. 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 a 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.
15. In the instant case, it is pointed out on behalf of the petitioner that the possession was not with the respondents Nos. 6 to 9 but was with a third person namely, the petitioner, who was subsequent purchaser and, therefore, this was an appropriate case where the relief for possession should have been claimed by the plaintiff-respondents Nos. 1 to 5.
16. It may be pointed out that the Additional Civil Judge had decreed the suit for specific performance of the contract. The High Court modified decree to the extent that the sale deed was to be executed by respondents Nos. 6 to 9 together with the petitioner. In short, the decree was passed by the High Court not only against respondents Nos. 6 to 9 but also against the subsequent purchaser i.e., the petitioner and thus the petitioner was himself the judgment-debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed. The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases. This argument ignores the significance of the words 'in an appropriate case'. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property. That has to be done where the circumstances demanding the relief for 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. Besides, the proviso to Sub-section (2) of Section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief 'at any stage of the proceedings'.
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.
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.
18. In Nakshtrapum Venkateswarlu v. Smt. Bathula Ankamma (8 supra), a learned single Judge of this Court followed the judgment of the Honble Apex Court in Babu Lal v. M/s Hazari Lal Kishori Lal (7 supra).
19. In Smt.Suluguru Vijaya v. Pulumati Manjula (9 supra), relying upon the judgment of the Honble Apex Court in Babu Lal v. M/s Hazari Lal Kishori Lal (7 supra) and after elaborately considering the issue in the light of the provisions of Section 28 of the Specific Relief Act, 1963 and Section 55 of the Transfer of Property Act, 1882, this Court at paras 9 & 10 held as infra:
9. The decision of the Apex Court in Adcon Electronics Pvt. Ltd. v.
Daulat and Anr. cited supra was relied on wherein the Apex Court held that Section 22(1) of Specific Relief Act, 1963, is an enabling provision and the relief of possession can be granted only if specifically prayed for, and hence, simpliciter for specific performance of a contract for sale of land is a suit for enforcement of the terms of the contract and cannot be treated as a "suit for land" and title to the land concerned is not subject-matter of a suit for specific performance. On a careful analysis, the facts of this decision appear to be distinguishable. In S.S. Rajabathar v. N.A. Sayeed it was held that where a suit for specific performance of a contract of sale had been decreed, the executing Court while executing the decree, can direct delivery of possession in the absence of a specific direction to that effect in the decree. The view expressed in Brij Mohan Matulal v. Mt. Chandrabhagabai was dissented from. In Mahender Nath Gupta v. Moti Ram Rattan Chand and Anr. the learned Judge of the Delhi High Court while dealing with the suit for specific performance of contract of sale which was filed before the commencement of the Specific Relief Act, 1963, and decree made after the commencement of the said Act, relief of delivery of possession neither claimed in the plaint nor granted in the decree and whether executing Court can grant delivery of possession, after referring to AIR 1967 SC 1541 : AIR 1954 All 643 : AIR 1952 Cal 362 : AIR 1950 All 415, held in the affirmative mainly on the ground that Section 22 of the Specific Relief Act, 1963, indicates a rule of pleading. In Lotu Bandu Sonavane v. Pundalik Nimba Koli. Section 22(1) and Section 22(2) Proviso of the Specific Relief Act, 1963 had been dealt with. The expression "in an appropriate case" in Section 22(1) and "at any stage of the proceeding" in proviso to Section 22(2) it was held that decree directing specific performance of agreement of sale against defendant in possession of property specific prayer for delivery of possession is not necessary. In Hemchand v. Karilal : AIR 1987 Raj 117 it was held that in a suit for specific performance, property in possession of contracting party and no third party had intervened, relief of possession would be implied in decree for specific performance and need not be specifically asked for and the question of amendment of plaint does not arise. Reliance also was placed on a decision in V. Narasimha Chary v. P. Radha Bai and Ors.
10. In the light of the statutory duties and obligations cast on the seller by virtue of Section 55 of the Transfer of Property Act, 1882, and also in the light of the scope and ambit of Section 22 of the Specific Relief Act, 1963, this Court is of the considered opinion that when there is no dispute or controversy that the judgment debtors-defendants are in possession of the property, the mere fact that such specific prayer was not made, the same cannot be taken advantage of principally for the reason the decree for execution of sale deed would imply the decree of delivery of possession too inasmuch as these are the obligations which would flow from the relief relating to execution of the sale deed. Hence, this omission cannot be taken advantage of. It is pertinent to note that it is nobody's case that any third party rights had intervened. When that being so, this Court is of the considered opinion that the impugned order does not suffer from any illegality, whatsoever.
20. In Kalivarapu Lakshmi Kumari v. Burada Appalanaidu (10 supra), this Court at paragraph 6 held as under:
6. In Major S.S. Khanna (supra), the Supreme Court held that the High Court is not obliged to exercise its jurisdiction when the case is decided by a subordinate Court merely because exercise of the jurisdiction is discretionary, which depends upon several factors including the general equities of the case being served by the order impugned, which is the subject matter of challenge before it.
On the admitted facts of this case, the decree granted in favour of the Respondent having become final and the Petitioner has lost the litigation all through, wherein he has suffered the decree for specific performance of contract, the technical plea raised by the Petitioner placing reliance on Explanations v. and VII to Section 11 Code of Civil Procedure, if accepted, will lead to an iniquitous situation, where the Respondent will be left in a position of having succeeded in the civil litigation fought for over years and still being deprived of the fruits of the decree. As held by the Supreme Court in both the above cases, equitable jurisdiction cannot be extended to the Petitioner, more so, when he has failed to raise the above grounds in a substantive petition filed for dismissing the execution petition. Further, where law is on one side, and equity and justice on the other, the Court which exercises the discretionary jurisdiction always leans in favour of the latter, lest injustice will be perpetrated on those in whose favour equity and justice lie.
21. In V.Narasimha Chary v. P.Radha Bai (11 supra), this Court at paragraph 6 held as under:
6. The other contention of the learned Counsel for the revision petitioner is that from the facts in Harikishan v. Balakishan Panwar (supra) it is seen that there was a clause in the decree for delivery of possession and since there is no such clause for delivery of possession in this case, that case is distinguishable. I am not able to agree with the said contention. The Supreme Court in Babu Lal v. Hazarilal and Ors.
(supra) held that the relief of possession could be given to the decree holder even though the same is not specifically granted in the decree. In paragraph No. 17 it is held that:
"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 view of the above, though the relief of possession is not claimed in the suit, and was not granted in the decree, the executing Court can grant the relief of possession to the decree holder in execution proceedings also. In view thereof, I am of the opinion that the trial Court has not committed any error and has not acted beyond its jurisdiction in granting the relief of possession in favour of the decree holder, for this Court to interfere in Revision Under Section 115 C.P.C. In the circumstances of the case, I need not consider the other decision cited at the bar, referred to above.
22. In Lotu Bandu Sonavane v. Pundalik Nimba Koli (14 supra), the Bombay High Court at paras 6, 7 & 10 held thus:
6. This view finds support in the above referred decision of the Kerala High Court in Narayan Pillai's case : AIR1978Ker236. In that case relying on the decision in Gyasa v. Risao : AIR1977All156 the learned single Judge interpreted the expression in an appropriate case appearing in opening clause of sub-sec. (1) of S. 22 of the Specific Relief Act, 1963 and held that the said expression indicates that it is not always incumbent on the plaintiff to claim possession or partition and separate possession in a suit for specific performance of the contract for transfer of immovable property.
7. Admittedly the respondent in this case is in possession of the property, which is subject-matter of the decree for specific performance and is hound to deliver possession of the property after execution of the sale-deed. Hence even though no specific prayer is made in the plaint and even though the decree is silent about delivery of possession, the executing Court was bound to grant the relief.
10. In this view of the matter the application filed by the petitioner for amendment of the plaint will have to be granted, even though such an amendment was not necessary.
23. In Debabrata Tarafder v. Biraj Mohan Bardhan (15 supra), the Calcutta High Court followed the judgment of the Honble Apex Court in Babu Lal v. M/s Hazari Lal Kishori Lal (7 supra).
24. In S.S.Rajabathar v. N.A. Sayeed (16 supra), at paras 9, 14 & 15, the Madras High Court held as under:
9. The next decision is that of the same High Court in Atal Behari Acharya v. Barada Prasad Banjerji : AIR1931Pat179 . In that case the question actually arose with regard to the jurisdiction of the executing court with reference to a decree for specific performance of a contract of sale. The learned Judges have held that incidental to the relief to which a plaintiff is entitled in a decree for specific performance arising on a contract for sale, the court has a right to grant possession of the property; that a contract for sale includes not only the execution of the necessary document but also putting the vendee in possession of the property; and that therefore if there is an omission in the plaint or in the decree about possession, the executing court is not debarred from granting the plaintiff the possession of the property. Unfortunately, while coming to this conclusion, the learned Judges mistook the decision of this court in ILR (1914) Mad 698 = AIR 1914 Mad 465. I have already referred to the fact that that decision was concerned only with the bar imposed by Order II Rule 2, Civil Procedure Code and was not concerned with the jurisdiction of the executing court. Erroneously thinking that that judgment denied the jurisdiction to the executing court to grant relief of possession, the learned Judges of the Patna High Court stated that in so far as that decision held that the executing court had no right to delivery possession to a decree-holder in an action for specific performance, that proposition had been expressly dissented from by the Patna High Court in AIR 1920 Pat 89 referred to already.
Thus, it will be seen that both the Benches of the Patna High Court in the two decisions referred to above would appear to have mistaken the scope of the decision of this court in ILR (1914) Mad 698 = AIR 1914 Mad 465. Notwithstanding this mistake with regard to the scope of the decision of this court, the learned Judges of the Patna High Court, if I may say so with respect, came to the correct conclusion that an executing court had jurisdiction to grant or order delivery of possession in execution of a decree for specific performance. One of the reasons given by the learned Judges is that under Section 55 of the Transfer of Property Act, one of the implied conditions of a contract for sale of immovable property is to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits. Consequently, when the executing court directs delivery of possession after a conveyance has been executed, it is merely completing the decree for specific performance by directing the vendor to perform one of the obligations which he has undertaken to perform and which law imposes on him.
14. The same view was reiterated by another Bench of that court in Pt. Balmukund v. Veerchand : AIR1954All643 . In that case, the Bench went a step further and held that where a decree for specific performance of a contract of sale is silent as to the relief of delivery of possession, even though claimed in the suit, the executing court is still competent to deliver possession. The learned Judges have pointed out that it is not necessary in a suit for specific performance either to separately claim possession or for the court to pass a decree for possession and that a decree for specific performance of a contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being indicated by Section 55 of the Transfer of Property Act. According to the learned Judges-
"The decree for specific performance, which provides that the property shall be sold to the plaintiff by the defendants and the sale deed shall be executed within a certain time, failing which the court will have the sale be executed within a certain time, failing which the court will have the sale deed executed by a person nominated by it, implies that delivery of possession shall be given in accordance with the provisions of Section 55(1)(f) of the Transfer of Property Act. Delivery of possession is a necessary ingredient and part of transfer of ownership."
The same is the view of the Calcutta High Court also. In Kartik Chandra Pal v. Dibakar Bhattacharjee: AIR1952Cal362 , a Bench of that High Court held-
"It is incontestable that in a suit for specific performance of contract for the sale of land it is open to the plaintiff to join the same suit two prayers, one for the execution of the deed of transfer and another for recovery of possession of the land in question....... The right to recover possession springs out of the contract which is being specifically enforced and not on the narrower view expressed in some of the cases that it was only as a result of the execution a right arises...... The usual form of a decree in a suit for specific performance is that the agreement is referred to be specifically performed and carried into execution with a further provision about the details of the steps to be taken by the parties. The most important part of the decree is that portion where the court directs the contract to be specifically performed. The details which follow do not in any way limit the jurisdiction of the executing court to the particular steps which are mentioned in the decree but all such other steps which ought to be taken for giving full effect to the decree for specific performance are not only within the competence of the court but the court is bound to assist the party to that extent........ By the decree for specific performance the court sets out that it finds to be the real contract between the parties and declares that such a contract exists and it is for the executing court to do the rest."
15. The same view was reiterated by another Bench of that court in Subodh Kumar Banerjee v. Hirmani Dasi : AIR1955Cal267 . The learned Judges held-
"Thus unless there is a contract to the contrary, giving delivery of possession to the buyer by the seller is an incident of a contract for sale and when there is a decree directing the contract to be specifically performed it includes a direction upon the vendor to give delivery of possession to the purchasers."
The same view was taken by the High Court of Madhya Pradesh in Dadulal Hanumanlala v. Deo Kunwar Bai: AIR1963MP86 . The learned Judge held in that case-
"Under Section 55 of the Transfer of Property Act the rights and liabilities of buyer and seller, in the absence of a contract to the contrary, have been enumerated and, as the contract in question (Ex. Para-1) is silent and there being nothing to the contrary as to the delivery of possession, it has to be held that the vendor- defendants had contracted with the plaintiff-vendee to deliver possession to him over the property after execution of the sale deed in his favour. It was a part of the entire contract and that come into existence simultaneously with that when the plaintiff went to the court claiming specific performance of the contract (Ex. P-1) and was declared to be so entitled, the defendant- judgment-debtors would be deemed to have been held also correspondingly liable not only to covey the property but also to place the plaintiff-decree-holder in possession thereof on being so required by him."
25. In Gyasa v. Smt.Risalo (17 supra), at paragraphs 3 to 6, it was held as under:
3. It was contended that in a suit for specific performance of contract for the sale of immovable property, the plaintiff must always claim possession or partition or separate possession of the property in addition to the relief for specific performance of contract and where the plaintiff omits to do so specifically no such relief could be granted by the Court. Since the Court is precluded from granting the relief for possession in a suit where relief for possession has not been specifically claimed, it is not competent for the execution Court to deliver possession of the property to the decree-holder in execution of a decree for mere specific performance of the contract of sale of the immovable property. This argument ignores the significance of the words 'in an appropriate case' occurring in Sub-section (1). The expression 'in an appropriate case' indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of contract for the transfer of the Immovable property. That is to be done where the circumstances demand it. The relief for specific performance of the contract of sale embraces 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 for possession being inherent in the relief for specific performance of the contract for sale. It cannot, however, be disputed that in certain circumstances relief of possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession e.g., 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. Earlier in view of Order 2, Rule 2, Civil Procedure Code, 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 visualised 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 to obtain possession as against the party in actual possession of the property. As against him a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. It appears that Section 22 of the Specific Relief Act was enacted to get over such technical difficulties and to avoid multiplicity of suits. 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 provisions of Section 55(1)(f) 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.
4. The principle that the relief for possession is inherent in the relief for specific performance of the contract of sale and that in execution of a decree for specific performance of a contract of sale the decree holder is entitled to possession over the property even if no such relief was specifically claimed in the suit or granted under the decree, was accepted by this Court in Arjun Singh v. Sahu Maharaj Narain :
AIR1950All415 . The Court observed :--
"The nature of the relief granted by the decree in a suit for specific performance of a contract for sale is such that everything which is necessary for the contract to be specifically performed should be held to be comprised in it. A contract for sale includes not only the execution of the sale deed as required by the Transfer of Property Act, but also putting the vendee in possession of the property sold. As soon as the deed of conveyance is executed the title to the property in question vests in the vendee. The delivery of possession by the execution Court, therefore, appears to be some thing incidental to the right of the decree-holder to have the contract specifically performed. "The deed of conveyance is itself executed by the execution Court. An order directing delivery of possession to the vendee is merely incidental to the execution of the deed of sale."
This principle was reiterated by a Bench of this Court in Balmukund v. Veer Chand : AIR1954All643 .
5. It was contended that the principle laid down in the aforesaid cases no longer holds good in view of the specific provision contained in Section 22 of the Specific Relief Act. As observed earlier this argument ignores the expression 'in an appropriate case' contained in Sub-section (1) of Section 22 of the Specific Relief Act, The use of the word 'may' in Sub-section (1) also indicates that it is not always incumbent on such a plaintiff to claim specifically relief for possession or partition or separate possession. The principle enunciated in the aforesaid cases is not shaken by Section 22 and still holds good.
6. In the present case, the property being in possession of the judgment-debtor, there is no hurdle in satisfying the decree by putting the decree-holder in possession over it through execution of the decree as it stands. The objection of the judgment-debtor to the executability of the decree by delivery of possession is untenable.
26. In Narayana Pillai Krishna Pillai v. Ponnuswami Chettiar Subbalekshmi Ammal (18 supra), at paragraphs 4, 11 and 15, it was held thus:
4. Now there is no dispute that by the suit contract the appellant agreed not only to sell the property to the respondent but also to put him in possession of it. It was this contract of which the court decreed specific performance, the contract to execute the sale-deed and give the respondent possession of the property. On the failure of the appellant, the court executed the sale-deed on his behalf in favour of the respondent. On the terms of the contract of sale and under Section 55(1)(f), T. P. Act, the appellant was bound to give possession of the property to the respondent. It was incidental to the relief of specific performance that besides the conveyance possession should also be given to the respondent; in other words that relief was a mandate to the respondent to do both and thus complete the specific performance.
If he defaults in either it is for the court to do it for him at the respondent's instance and as the court has already executed the sale- deed what remains is to carry out the appellant's unfulfilled obligation to put the respondent in possession of the property. As the right to obtain possession is thus Implicit in the decree, the absence of a specific relief for delivery of possession is immaterial. When the court thus puts the respondent in possession of the property it is but executing the decree for specific performance which is within its jurisdiction. The learned Judge who decided : AIR 1948 Nag 406 omitted to take note of the rights of the parties to a decree for specific performance but had merely gone by the general principle that the power of the executing court is conditioned by the reliefs granted by the decree. With respect I disagree from the view taken in that decision.
11. The question can be viewed in another aspect also. As observed earlier the Civil P. C. does not prescribe any particular form in which decrees for specific performance should be drawn. It is settled law as pointed out in H. I. Trust v. Haridas Mundhra, : AIR 1972 SC 1826 that "the court which passes a decree for specific performance retains control over the decree even after the decree has been passed". The effect of the decisions quoted with approval by the Supreme Court in para. 22 of the judgment is that the contract between the parties is not extinguished by the decree for specific performance, that the decree is not a final decree and that the suit must be deemed to be pending even after the decree and that it is virtually in the nature of a preliminary decree. The Supreme Court also quoted with approval passages from Fry on Specific Performance (6th Edn. p. 546) and from Halsbury's Laws of England, (3rd Edn. Vol. 36, 351-52) of which the following extracts could be helpfully reproduced:
"It may and not infrequently 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 ... ... ..." (Fry) "Ancillary relief may be obtained after judgment in an action for specific performance where such further relief becomes necessary ... ... ... (Halsbury) (In this decision the Supreme Court rescinded a decree for specific performance of a contract for the sale of shares, owing to the refusal of the seller to perform his part of the contract, even though Section 28 of the Specific Relief Act 1963 provides only for rescission of decree for specific performance for the sale or lease of immovable property).
15. What remains to consider Is the appellant's alternate contention based on Section 22 of the Specific Relief Act 1963. That section reads :
"22. Power to grant relief for possession, partition, refund of earnest money, etc.--(1) Notwithstanding anything to the contrary contained in the Civil P. C. 1908 (5 of 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 the may be entitled, including the refund of earnest money or deposit paid or made to 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 Section 21." The suit out of which the appeal arises was instituted after the 1963 Act came into force and it is urged that Sub-section (2) is an absolute bar to the grant of the relief of possession as the respondent had not claimed it in terms of Clause (a) of Sub-section (1). Counsel contends that the appellant was in possession of the property and' it was therefore an "appropriate case" within Sub-section (1) where the respondent could have claimed recovery of possession and that not having been done the bar under Sub-section (2) operates.
The answer to this contention has to be found in the true meaning and significance of the expression "in an appropriate case" in Sub-section (1). It had been settled by judicial decisions that a 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. Where the defendant is in possession and the plaintiff could ask for possession and that position has been settled, it is legitimate to think that the Legislature contemplated a different situation when it framed the expression "in an appropriate case". On that aspect I find myself, with respect, in agreement with the following discussion in Gyasa v. Risalo "The expression 'in an appropriate case' indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of contract for the transfer of the immovable property. That is to be done where the circumstances demand it. The relief for specific performance of the contract of sale embraces 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 for possession being inherent in the relief for specific performance of the contract for sale. It cannot, however, be disputed that in certain circumstances relief of possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession e.g., 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." And "Similarly a case may be visualised 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 to obtain possession as against the party in actual possession of the property. As against him a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. It appears that Section 22 of the Specific Relief Act was enacted to get over such technical difficulties and to avoid multiplicity of suits. 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 the 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 provisions of Section 55(1)(f) of the T. P. 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."
In my view the property being in the possession of the judgment- debtor, as in that case, Section 22(2) is no bar to delivery of possession of the property to the decree-holder. I reject the appellant's argument on this point.
The judgment of the courts below are confirmed and the appeal is dismissed with costs.
27. From a reading of the principles and parameters laid down in the above referred judgments cited by the learned counsel for the respondent wherein the Courts elaborately and thoroughly analysed and considered the issue in the light of the provisions of Section 28 of the Specific Relief Act, 1963 and Section 55(1)(f) of the Transfer of Property Act, 1882, it can now be safely concluded that even in the absence of any specific clause in the decree for recovery of possession, the executing court is undoubtedly and unhesitatingly is competent to order delivery of the property covered by the suit agreement of sale. It is further clear that the decree for mere specific performance implies a decree for possession also. The provisions of Section 28 of Specific Relief Act and Section 55(1)(f) of the TP Act obligate the seller to deliver the property. In fact, this Court in the decision reported in Smt.Suluguru Vijaya v. Pulumati Manjula (9 supra) considered the judgment of the Supreme Court in Adcon Electronics Pvt. Ltd., v. Daulat (1 supra) and also the judgment of the Supreme Court in Babu Lal v. M/s Hazari Lal Kishori Lal (7 supra) and eventually placed reliance on Babu Lals case wherein the Hon'ble Supreme court elaborately considered Section 28 of the Specific Relief Act and Section 55 of the Transfer of Property Act.
28. A reading of the judgment of the Supreme Court makes it evident that in the judgment in Adcon Electronics Pvt. Ltd., v. Daulat (1 supra), the Honble Apex Court had no occasion to consider either Section 28 of the Specific Relief Act or Section 55 of the TP Act nor the said provisions of law were brought to the notice of the Honble Supreme Court and the judgment of the Honble Apex Court in Babu Lal v. M/s Hazari Lal Kishori Lal (7 supra), wherein the Honble Apex Court elaborately considered the said provisions of law was also not brought to the notice of the Hon'ble Apex Court.
29. It needs to be remembered that a mature legal system proceeds always a step forward and endeavours to provide not merely a remedy for every right infringed but also an adequate remedy. The endeavour of the Courts should be in the direction of providing speedy and meaningful justice to the society and Courts should also strive for effective and expeditious implementation of the decrees, otherwise there is every possibility of citizens losing faith and confidence in the system. In the name of technicalities and inappropriate procedural shackles the validly rendered decrees should not be allowed to be frustrated at the instance of the wise and seasoned litigants and the innocent decree holders should not be allowed to suffer and their legitimate rights should never be permitted to be invaded. The contention of the learned counsel for petitioner that the Executing Court cannot go beyond the decree also pales into insignificance in view of the law laid down in the above referred judgments.
30. In the teeth of the statutory duties imposed by the provisions of Section 28 of the Specific Relief Act and Section 55 of the Transfer of Property Act on the seller and keeping in view the area of operation of Section 22 of the Specific Relief Act, 1963 and keeping in view the interpretation given to the phrase "inappropriate cases" as stipulated in Section 22 of the Specific Relief Act in the above referred judgments and keeping in view the reality that the property is only in the possession of the judgment debtor but not in the possession of any third party and having regard to the ratio laid down in the authoritative pronouncement of the Apex Court, wherein the Supreme Court elaborately and extensively considered the impact of the provisions of Section 28 of the Specific Relief Act and Section 55(1)(f) of the Transfer of Property Act, this Court expresses absolutely no scintilla of hesitation nor any traces of doubt to hold that the there is no legal infirmity in the impugned order, warranting interference of this Court under Section 115 of CPC. This Court also finds that the order under revision is well reasoned and well crafted and this Court finds no reason to meddle with the impugned order.
31. For the aforesaid reasons, the CRP is dismissed. As a sequel, the miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
______________ A.V.SESHA SAI, J Date: 9.3.2015