Andhra HC (Pre-Telangana)
A. Pramila And Anr. vs G.V. Rathaiah on 18 August, 1998
Equivalent citations: 1998(5)ALD689, 1998(5)ALT719, 1999 A I H C 483, (1998) 2 LS 353, (1998) 3 APLJ 130, (1999) 1 CURCC 377, (1999) 1 CIVILCOURTC 38, (1998) 5 ANDHLD 689, (1998) 4 ICC 91, (1998) 5 ANDH LT 719, (1999) 2 CIVLJ 45
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT
1. Heard Mr. Ramana Reddy, learned senior Counsel for the petitioners and Mr. J. V. Smyanarayana Rao, learned senior Counsel for the respondent.
2. The admitted facts of this C.R.P. are as follows:
The petitioners are the respondents-judgment-debtors. The suit O.S.No. 388/82 was filed on the file of the District and Sessions Judge, Ranga Reddy District for specific performance of open site measuring 1136 sq. yards equivalent to 943 sq.metrs. It is submitted that the petitioners are the transferees of the property from defendant No.1 and as such, they were added as defendants No.2 and 3 during the pendency of the suit. The trial Court decreed the suit on 28-11-1984. Aggrieved by the said judgment, the petitioners preferred appeal i.e., A.S.No.23 57/85 before this Court and the same was dismissed on 24-2-88. Again the petitioners preferred L.PA No. 132 of 1988 and the same was also dismissed on 13-11-1992. The petitioners carried the matter to the Supreme Court by S.L.P. No. 3957/93 and the same was also dismissed on 27-4-1993. After the dismissal of the S.L.P., the respondent-decree-holder preferred E.P.No.25/93 on 30-4-93 for the execution of the sale deed as the petitioners-judgment-debtors did not execute the sale deed. The sale deed was executed by the Court on 16-4-1993 and registered on 17-4-1993. It is submitted that after the registration of the sale deed on 17-1-1993, the respondent-decree-holder preferred E.A.No. 25/93 for possession of the plaint schedule property. The executing Court after hearing the arguments of both the parlies has allowed the E.A. on 9-9-1993 and the respondent-decree-holder was put in possession of the plaint schedule land on 17-9-1993.
3. In this C.R.P., the petitioners challenge the, legality of the order passed by the executing Court.
4. Mr. Ramana Reddy, learned senior Counsel appearing for the petitioners vehemently submits that the executing Court has committed an error in law in allowing the respondent's-decree-holder's interlocutory application for possession of the suit schedule property; the impugned order is illegal and is not sustainable in law, for it is a settled law that an executing Court cannot go behind the decree. He submits that though the respondent has asked for relief of possession of the suit schedule property in the plaint, a copy of which has been filed in the material papers, the trial Court decreed the suit only for execution of the sale deed in respect of suit schedule property in favour of the respondent but there is no decree for possession of the property in favour of the respondent. He lays stress that after the sale deed was executed by the Court, the executing Court should have closed the E.P., but the E.P., was closed on 30-9-93 after the respondent was put in possession of the suit schedule property.
5. The contention of the learned Counsel for the petitioners is that the decree passed by the trial Court which has been finally affirmed by the High Court and the dismissal of the S.L.P. of the petitioners has been legally executed in full after the sale deed was executed by the Court below in favour of the respondent and nothing remains further for execution of the decree. He further submits that the executing Court has committed an error without filing any amendment petition for amendment of judgment or decree, no relief of possession could have been granted to the respondent by the executing Court and as such, the E.A., filed by the respondent is not sustainable in law.
6. Mr. J.V. Suryanarayana Rao, learned Counsel for the respondent submits that in a suit for specific performance of agreement of sale in respect of immovable property which is decreed, a decree is not satisfied unless possession of the property is delivered. Placing reliance on Section 22 of the Specific Relief Act, 1963 he further submits that, a decree-holder in a suit for specific performance of immovable property is entitled for all the relief for which he is entitled to though specifically prayed for in the plaint or not and the Court is empowered to grant the same as the statute itself provides it, as such, there is no error of law or illegality in the order passed by the Court below.
7. He relies on the judgment rendered by the Apex Court in Babu Lal v. M/s. Hazari Lal Kishori Lal, .
8. In this case, their Lordships while considering the effect of Section 47 C.P.C. and Order 2 Rule 2 and Section 55 of the Transfer of Property Act, have considered the scope of Sections 21, 22 and 28. In a case where a vendor selling the immovable property to another in pursuance of a prior agreement of sale and in a suit for specific performance whether relief can be granted for possession of the suit schedule property eventhough it is not prayed. Paras 13,16,18, 28 and 29 of the above judgment which are to the following effect.
Paragraph-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 C.P.C. 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 accquired title to the property on the execution of a safe deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff 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. 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) 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."
Paragraph-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 No.6 to 9 together with the petitioner. In short, the decree was passed by the High Court not only against respondents No.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 posssession 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-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 ofthe proceedings'.
Paragraph-18 In Mahendm Nath Gupta v. M/s Moti Ram Rattan Chand, , the Delhi-High Court endorsed the view taken in Balmukand v. Veer Chand, , 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.
Paragraph-28 This is an additional reason why this Court should not interfere with the eminenllyjust order of the High Court. The High Court had amended the decree passed by the first appellate Court and passed a decree for possession not only against the transferors but also against their transferee, that is, the petitioner.
Paragraph-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."
9. Mr. J. V. Suryanarayana Rao submits that the instant case is covered by the above judgment on all its fours. He also submits that after amendment of Section 22 of the Specific Relief Act, it is necessary that there should be a pleading in suit for specific performance, if there is no pleading for the relief of possession in the suit, that can be asked for at any stage.
10. Mr. Ramana Reddy, learned Counsel for the petitioners also relies on the judgment of the Apex Court in Babu Lal vs. Hazari Lal Kishori Lal (supra). He invites my attention to paras-3 and 23 which are to the following effect :
Paragraph-3 "Only one contention has been raised on behalf of the petitioner by Mr. Shanti Bhushan, senior Counsel, that the High Court could not grant relief in execution application in excess of and outside the framework of the prayer by the plaintiffs in the original main suit. As a second limb to this argument it was further contended that the High Court has acted in flagrant violation of the provisions of Section 22 of the Specific Relief Act in granting the relief of possession. In substance, the main plank of the contention of the petitioner is based on Section 22 of the Specific Relief Act. As it stands after amendment of 1963, it reads.
"22(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 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 he may be. entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.
(2) No relief under Clause (a) or Clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under Section 21."
Paragraph-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 immission 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 T.P. Act authorises the transferee to get possession in pursuance of a sale deed."
11. In this case no application has been filed to amend the judgment and decree.
12. In order to appreciate the various contentions of the learned Counsel, it is necessary to look at the provisions of Section 22 of the Specific Relief Act, 1963 which reads as under:
"22(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 bythe 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."
13. The power of Court to grant relief for possession, partition, refund of earnest money etc. It is already provided in the Act. When a person suing for the specific performance of contract for immovable property, all the reliefs which the petitioners are entitled can be granted in appropriate cases. For possession or partition and separate possession, of the property, in addition to such performance or any other relief which he may be entitled including the refund of earnest money or deposit paid, in case his claim for specific performance is refused. It also provides that, if any relief for which the person is entitled to and not claimed, it is permissible to claim the same relief at any stage of the proceedings.
14. In the above Apex Court Judgment their Lordships have considered the scope of Section 22 and 28 and varying views expressed by the Allahabad, Mysore and Calcutta High Courts with regard to delivery of possession of the property in a specific performance suit and observed in paras 10,11,32 and 13 to the effect that "in this state of the law the Legislature intervened and on the basis of the report of the Law Commission enacted Section 22 in 1963 as it stands. 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.
15. 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, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-Section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed those reliefs in his plaint, in the initial stages 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."
16. Their Lordships in para 13 have considered 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 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 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 for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder. This is in consonance with the 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".
17. While further considering, their Lordships have agreed with the view expressed by the Delhi High Court in Ex-Servicemen Enterprises (P) Ltd v. Sumey Singh, AIR 1976 Del. 56, with regard to appropriate proceedings. 'In appropriate proceeding' used in sub-section (l)of Section 22 of the Specific Relief Act. That 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 work 'proceeding' is Section 22 includes execution proceedings also. In the above decision, the Delhi High Court relied on the decision of Allahabad High Court in Rameshwar Nalh v. Uttar Pradesh Union Bank Limited, .
18. Thus, it is clear that the Legislature has given ample power to the Court to allow the amendment of plaint at any stage including the execution proceedings.
19. Their Lordships while considering the scope of Section 28 of the Specific Relief Act held in para 26 that 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 subsection (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.
20. Keeping in view the scope of Sections 22 and 28 of the Specific Relief Act, as expressed by their Lordships in the above said decision and the criteria on which a party is entitled for possession of the property in a contract of sale for immovable property; in the instant case on hand, the respondent-decree-holder though had claimed for possession of the Specific performance of agreement of sale coupled with the relief of possession, but curiously, the trial Court merely granted the relief for execution of the sale deed in favour of the respondent and the same was confirmed in appeal and L.P.A. in the High Court. The Special Leave Petition filed by the petitioners against the said judgment was dismissed. After the said dismissal of the Special Leave Petition, the petitioners filed the execution petition and the respondent refusing to execute the sale deed, the sale deed was executed by the Court in favour of the respondent. After the execution of the sale deed, the respondent filed an application for possession of the property and the same was ordered and the respondent was put in possession of the suit property on 17-19-1993.
21. Mr. Ramana Reddy, the learned senior Counsel for the petitioners contention that the Court acted illegally for no amendment of the decree was sought and the said decree had become final as such, possession could not have been delivered.
22. Though at the first flush it appears that the above submission has substance, but on a close scrutiny it pales into insignificance, for the Apex Court in Babu Lal v. M/s Hazari Lal Kishori Lal (supra) in paragraph 27 has approved the judgment of the Apex Court in Hungerford Investment Trust Ltd. v. Haridas Mundhra, AIR 1972 SC 1826, dealing with Section 28(1) of the Specific Relief Act, 1963 where their Lordships have held as under:
"The Specific Relief Act, 1963, is not an exhaustive enactment and under the law relating to specific relief a Court which passes a decree for specific performance retains control over the decree even after the decree had been passed. Therefore the Court, in the present case, retained control over the matter despite the decree."
23. Following the above judgment their Lordships held that the reasoning given by the Court with regard to the applicability of sub-section (1) of Section 28 will equally apply to the applicability of subsection (3) of Section 28.
24. Following the law laid down by the Apex Court as above that the Specific Relief Act, 1963 is not an exhaustive enactment and under the law relates to the specific relief a Court which passes a decree for specific performance retains control over the decree even after the decree has been passed. Therefore, the Court, in the present case, retained control over the matter despite the decree and it was open to the Court to grant the relief of possession also to the petitioners and this view has been followed in Babu Lal v. M/s Hazari Lal Kishori Lal (supra) wherein it is also held in paragraph 29 that procedure is meant to advance the cause of justice and not to retard it.
25. Applying the above said principles laid down by the Apex Court, I hold that no interference is called for in the impugned order dated 9-9-1993 passed in E.A.No.25/93 in E.P. No.25/92 in O.S.No.388/82 on the file of the Court of the District and Sessions Judge, Ranga Reddy District at Sarbornagar, Hyderabad, as there is no illegality or error of jurisdiction. The C.R.P. is, therefore, dismissed. There shall be no order as to costs.