The Apex Court has directly considered the question as to whether a prayer for possession could be made at the execution stage though such a prayer is not made in the plaint or at the appellate stage arising from the said suit in the case of Babulal (supra). In the said case, in the execution proceeding, the High Court for the first time directed the suit plaint to be amended so as to allow the prayer for possession of the suit premises.
11. The Apex Court in the said case has observed that it may not always be necessary for a plaintiff to claim a relief for possession in a suit for specific performance. It will all depend upon the circumstances of each case. While interpreting the provisions of the Specific Relief Act and Section 55 of the Transfer of Property Act, the Apex Court observed thus:
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 other person as he directs such possession of the property as its nature admits.
12. The Apex Court, while considering the provision is of Section 28(3) of the Specific Relief Act, has observed thus:
Further Section 28(3) 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. This is an additional reason why the Supreme Court should not interfere with the eminently just 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.
It is thus clear that the Apex Court has clearly held that in view of Sub-section (3) of Section 28 of the Specific Relief Act, it would be permissible for a party to claim a relief of possession or payment of the purchase money, as is ordered to be paid under the decree. If such payment is made and relief of possession is claimed, the Court would always be competent to grant such a relief. I further feel that, on the contrary, such a relief would be one which would result in granting appropriate, just and proper relief in favour of a person in whose favour decree for specific performance is passed. In that view of the matter, I do not find any error in the impugned order.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
W.P. No. 1920 of 2005
Decided On: 27.02.2007
Kisan Vs. Ragho
Hon'ble Judges/Coram:
B.R. Gavai, J.
1. By way of present petition, the petitioner challenges the order dated 6th November, 2004 passed by the 2nd Joint Civil Judge Senior Division, Dhule below Exhibit 1 in Regular Darkhast No. 275/2001, thereby allowing the application of the present respondent for execution of the decree passed in Special Civil Suit No. 13/1992.
2. The parties hereinafter would be referred as plaintiff/respondent and defendant/petitioner.
It appears that the plaintiff/respondent had entered into an agreement of sale with the defendant on 16th December, 1985 for purchase of suit land admeasuring 1 Hectare 31 Ars, situated at village Arvi in block No. 4. The defendant/petitioner failed to execute the sale deed. The plaintiff, therefore, issued notice to the defendants. However, on failure to execute the sale deed, the plaintiff/respondent filed Special Civil Suit No. 13/1992 for specific performance of contract. The said suit came to be decreed on 10th December, 1996. Vide the decree in the said suit, the learned trial Court had directed appointment of commissioner to execute the sale deed in favour of the decree holder in respect of the suit property. The decree holder was also directed to pay an amount of Rs. 10,000/-.
3. The said judgment and order passed by the learned trial Court came to be challenged before the District Court. The said appeal also came to be dismissed by the Appellate Court and as such, the judgment of the trial Court has achieved finality.
4. Since the defendant failed to execute the sale deed, the plaintiff/respondent filed a Regular Darkhast for execution of the sale deed. In the said proceeding, the plaintiff claimed a relief of getting the sale deed executed and for an order confirming his possession or in the alternative delivery of possession. The said execution proceedings were objected by the defendants-judgment debtors. All the allegations in the darkhast were denied by the defendants. The learned executing Court vide order dated 6th November, 2004 allowed the application for execution as prayed. Hence, this petition has been filed.
5. Shri Deshpande, learned Counsel appearing on behalf of the petitioner submits that the order passed by the learned executing Court is without jurisdiction. He submits that in view of Section 22 of the Specific Relief Act, a relief of possession could not be granted unless it is claimed for. He submits that though the Court has power to grant amendment for claiming such a relief, unless such a relief is claimed, the Court has no jurisdiction to grant such a relief. He relied on the judgment of the Apex Court in the matter of Adcon Electronics v. Daulat reported in MANU/SC/0550/2001 : 2001 (4) Mh.L.J. 469 : AIR 2001 SCW 3534.
6. He further submits that the plaintiff is adopting practice of a probate and reprobate. He submits that, whereas an earlier suit came to be filed by him bearing R.C.S. No. 238/1990 for a relief of perpetual injunction restraining the defendants (present petitioners) from interfering with his possession. He has also now sought a relief of claiming possession. He submits that the suit of the plaintiff i.e. R.C.S. No. 238/1990 for injunction has been dismissed and an appeal preferred there against has also been dismissed and has achieved finality. He, therefore, submits that the order passed by the executing Court suffers from the vice of jurisdiction and is liable to be set aside.
7. Per contra, Shri Nimbalkar, learned Counsel for the plaintiff submits that the relief of possession is an incidental or ancillary relief to the main relief of specific performance of contract and the executing Court would always be competent to grant an ancillary relief of possession while executing the decree for specific performance. He relies on the judgment of the Apex Court in the matter of Babulal v. Hajarilal Kishorilal and Ors. MANU/SC/0049/1982 : [1982]3SCR94 .
8. Section 22 of the Specific Relief Act, reads thus:
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.
(c) No relief under Clause (a) or (b) to 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.
9. For the adjudication of the present dispute, it would be pertinent to refer to Sub-section (3) of Section 28 of the Specific Relief Act, which reads thus:
28(3). If the purchaser 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.
No doubt, the Apex Court in the matter of Adcon Electronics Pvt. Ltd. (supra) has observed that no Court can grant a relief of possession of land or other immovable property unless possession of the immovable property is specifically prayed for. However, from the perusal of the said judgment, it can be seen that the issue that arose for adjudication in the said matter was, as to what was the suit for land for determining the jurisdiction of the Division Bench of the Bombay High Court under Clause 12 of the Letters Patent.
In Para. 18 of the judgment, the Apex Court has observed thus:
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".
As such, it can clearly be seen that a limited issue that arose for consideration before Their Lordships of the Apex Court was, as to what was the suit for land so as to consider the jurisdiction of the Division Bench under Clause 12 of the Letters Patent.
10. The Apex Court has directly considered the question as to whether a prayer for possession could be made at the execution stage though such a prayer is not made in the plaint or at the appellate stage arising from the said suit in the case of Babulal (supra). In the said case, in the execution proceeding, the High Court for the first time directed the suit plaint to be amended so as to allow the prayer for possession of the suit premises.
11. The Apex Court in the said case has observed that it may not always be necessary for a plaintiff to claim a relief for possession in a suit for specific performance. It will all depend upon the circumstances of each case. While interpreting the provisions of the Specific Relief Act and Section 55 of the Transfer of Property Act, the Apex Court observed thus:
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 other person as he directs such possession of the property as its nature admits.
12. The Apex Court, while considering the provision is of Section 28(3) of the Specific Relief Act, has observed thus:
Further Section 28(3) 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. This is an additional reason why the Supreme Court should not interfere with the eminently just 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.
It is thus clear that the Apex Court has clearly held that in view of Sub-section (3) of Section 28 of the Specific Relief Act, it would be permissible for a party to claim a relief of possession or payment of the purchase money, as is ordered to be paid under the decree. If such payment is made and relief of possession is claimed, the Court would always be competent to grant such a relief. I further feel that, on the contrary, such a relief would be one which would result in granting appropriate, just and proper relief in favour of a person in whose favour decree for specific performance is passed. In that view of the matter, I do not find any error in the impugned order.
13. As already discussed hereinabove, apparently, I see no conflict in the aforesaid two judgments of the Apex Court in the case of Babulal v. Hazarilal Kishorilal and Adcon Electronics v. Daulat and Anr. (supra). However, both the judgments are by the Co-ordinate Bench of the Honourable Judges. The judgment in the case of Adcon Electronics has not noticed the view taken by the Apex Court in the case of Babulal. However, even assuming that there is some conflict, the Full Bench of this Court in a case reported in 1994 Mh.L.J. 1669, Kamleshkumar Ishwardas Patel v. Union of India and Ors. and the Full Bench of the Punjab and Haryana High Court in a case reported in AIR 1981 P & H 213, has taken a view that it is not necessary that a latter judgment of the Apex Court need to be followed and the High Courts could follow the one which in its view is better in point of law. I find that the view taken by the Apex Court in the case of Babulal (supra) is in accordance with law and, therefore, I am inclined to follow the same.
I further find that it is travesty of justice that though the decree for specific performance of contract has been passed way back in the year 1988, the respondent-plaintiff has not been yet in a position to get the decree executed and get its fruits. In that view of the matter, the writ petition is found without merit and as such, it is dismissed.
At this stage, Shri Deshpande, learned Counsel for the petitioner makes a prayer that the order of this Court should be stayed for a further period of 3 months. However, taking into consideration the view that I have taken, I am not inclined to grant such relief.
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