Madhya Pradesh High Court
Sunderlal And Ors. vs Gopal Sharan on 13 September, 2002
Equivalent citations: 2003(1)MPHT330
ORDER Subhash Samvatsar, J.
1. This revision is filed by the judgment-debtor against an order whereby the Executing Court has directed them to hand over the vacant possession of the suit property.
2. The facts of the case are that the respondent filed a suit for specific performance of a contract against the present petitioners. In the said suit relief for possession was not asked by the plaintiff, as the plaintiff alleged that he is in possession of the suit property. Ultimately, a decree for specific performance was passed in favour of the plaintiff. As the plaintiff has not prayed for the relief of possession in the plaint itself, the decree is silent on the point of possession. After obtaining the decree for specific performance the respondent filed execution proceedings in which he has claimed not only the relief of execution of the document but also for possession.
3. The petitioners objected to the relief of possession. The said objections were overruled by the Executing Court and the Executing Court directed the petitioners to execute the sale-deed as well as to hand over the possession of the suit property. This order is under challenge in the present revision.
4. The main contention of the petitioners in this revision is that the Executing Court cannot go behind the decree and is required to execute the decree as it is. The Executing Court has no jurisdiction to alter or change the nature of the decree and in spite of the said settled principle of law the Executing Court in this case has directed to hand over the vacant possession of the suit premises in favour of the decree-holder. This direction, according to the petitioner, is without jurisdiction. Hence, this revision.
5. Shri K.L. Mangal, learned Counsel for the petitioners, for this purpose relied on the provisions of Section 22 of the Specific Relief Act. According to him, under Section 22 of the Specific Relief Act the plaintiff along with the suit for specific performance may pray for appropriate relief including the relief of possession. According to him, Sub-section (2) of the said Section creates a bar on the Court to grant any relief in favour of plaintiff which is not specifically asked for by him in the plaint. Section 22 of the Specific Relief Act reads as under :--
"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 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, may as be just for including a claim for such relief.
(3) The power of Court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation under Section 21."
6. Shri K.L. Mangal relying on Sub-section (2) of Section 22 has vehemently urged that in the present case the plaintiff has not asked for any relief for possession and, therefore, the said relief cannot be granted to him in execution proceedings. For this purpose, he relied on the judgment of the Apex Court in the case of Adcon Electronics Pvt. Ltd. v. Daulat and Anr. [(2001) 7 SCC 698]. He invited my attention to para 16 of the said judgment. In para 16 of the said judgment, the Apex Court has reproduced Section 22 and has laid down that in a suit for specific performance of a contract for sale of immovable property containing a stipulation that on execution of the sale-deed the possession of the immovable property will be handed over to the purchaser. In such a case, it is necessary for the purchaser to specifically ask for relief of possession.
7. Shri Mangal also relied on the judgment of this Court in the case of Sardar Ravindra Singh v. Smt. Gurubachan Kaur [1996 (I) MPWN 52], to support his argument that the Executing Court cannot go behind the decree and is bound to execute the decree as it is. The Executing Court cannot modify or amend the decree.
8. There is no doubt about the proposition that the Executing Court cannot go behind the decree. The question in the case is whether the decree for specific performance implies the decree for possession.
9. Shri A.M. Naik, learned Senior Advocate for the respondent, urged that in a suit for specific performance it is not necessary for the plaintiff to ask for possession, as the decree for specific performance necessarily follows the relief of possession. The relief of possession is implicit in the decree for specific performance. For this purpose he relied on number of authorities.
10. In the present case, it is no doubt true that the plaintiff has not claimed relief for possession. On the other hand, he has approached the Court on the allegation that he is in possession of the suit property and, therefore, there was no question of asking the relief of possession. After perusing the original judgment and decree, I found that the Court below has not addressed its mind to the question about the possession of land and has not given any specific finding about the possession of the land.
11. Shri A.M. Naik, for supporting his submission has urged that the judgment of the Apex Court in the case of Adcon Electronics Pvt. Ltd. (supra), relied by the Counsel for the petitioner is quite distinguishable. According to him, the question involved in the said judgment was quite different. He invited my attention to paras 1, 4 and 11 of the said judgment.
12. After perusing the said judgment, I found that the main question involved in the case was about the maintainability of the Letters Patent Appeal. Under Clause 12 of the Letters Patent of Bombay High Court, the Letters Patent Appeal lies against a judgment in a suit relating to land. The question before the Apex Court was whether the suit for specific performance can be said to be a suit for land or its title. In para 15 of the judgment, the Apex Court has held that a suit for land is a suit in which the relief claimed relates to title or delivery of possession of land or immovable property. Whether a suit is a suit for land or not has to be determined on the basis of the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a "suit for land". According to the Apex Court, the suit for specific performance of an agreement to sell of the suit property wherein the relief for delivery of suit property is not specifically claimed cannot be treated as suit for land and, hence, the Apex Court has held that the Letters Patent Appeal in the said case was not maintainable under Clause 12 of the Letters Patent of Bombay High Court.
13. The question whether the relief for possession is implicit in a decree for specific performance was not there before Their Lordships in the aforesaid case. Moreover, earlier judgment of the Apex Court in the case of Babulal v. Hazarilal Kishori Lal and Ors. [(1982) 1 SCC 525] was not brought to the notice of Their Lordships nor the provisions of Section 55 of Transfer of Property Act were under consideration before the Apex Court and, therefore, the said judgment is quite distinguishable from the facts and circumstances of the present case. Section 55 of the Transfer of Property Act castes a duty on the seller of immovable property to hand over the possession of the property to the purchaser. The Apex Court in its earlier judgment in the case of Babulal (supra) has specifically laid down that a decree for specific performance embraces within its ambit not only the execution of the sale-deed but also possession of the property. A similar view is taken by this Court in its judgment in the cases of Bata Shoe Co. v. Preetamdas and Ors. (1983 JLJ 422). In the said judgment, this Court has held that in execution of a decree for specific performance of sale where the decree is silent on the question of delivery of possession, the Executing Court can direct delivery of possession. For this purpose this Court has relied on its judgment in the cases of Dadulal Hanumanlala v. Deo Kunwar (1983 JLJ 234) and Brijmohan v. Chandrabhaga Bai (AIR 1948 Nagpur 406). Similar view is taken by Calcutta High Court in the cases of Subodh Kumar Banerjee v. Hiramoni Dasi and Ors. [AIR 1955 Calcutta 267 (DB)] and Debabrata Tarafder v. Biraj Mohan Bardhan (AIR 1983 Calcutta 51); as well as by this Court in the cases of Shrikrishna Gupta v. Sitaram Mohanswaroop Nigam [1997 (2) MPLJ 501] and Mohd. Yakub v. Abdul Rauf and Anr., 2002(1) M.P.H.T. 216.
14. The Apex Court in the case of Bhavan Vaja and Ors. v. Solanki Hanuji Khodaji Mansang and Anr. (AIR 1972 SC 1371) has laid down that even though the Executing Court cannot go behind the decree under the execution but that does not mean that it has no duty to find out the true effect of the decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree, the Court often has to ascertain the circumstances under which these words came to be used. As per the said judgment, it is the duty of the Executing Court to find out the exact object of passing of the decree and giving effective relief to the decree-holder.
15. Shri Mangal, learned Counsel for the petitioners tried to distinguish the judgments in the cases of Babulal (supra) and Bata Shoe Co. (supra) on the ground that in those cases the plaintiff had claimed possession and, therefore, in absence of a specific direction in the decree for handing over the possession the Court has granted the said relief. In the present case, according to him, the plaintiff himself has not specifically claimed possession and, therefore, is not entitled to the decree of possession.
16. In the present case, it is true that in the plaint the plaintiff has alleged that he is in possession of the suit property but the Court has not given any finding about the possession of the land in the present case. Moreover, in the case of Shrikrishna Gupta (supra), the relief of possession was not claimed by the plaintiff in the plaint and in spite of the said fact this Court has held that the relief of possession can be given by the Court even in absence of prayer for the same, as the decree for specific performance itself implies the decree for possession.
17. In view of the said judgment, I am of the view that the Executing Court has not committed any jurisdictional error in directing the defendants to hand over the possession in execution of the decree for specific performance.
18. Thus, this revision is devoid of any merit and is dismissed with no order as to costs.