P. Annamalai v. Periathambi — 1984 DIGILAW 342 (MAD)

ORDER: This civil revision petition is filed against the order passed in E.P.No.21 of 1983 in Award No.23 of 1982 on the file of the Additional Subordinate Judge of Kancheepuram. The petitioner in that E.P. has come forward with this petition. 2. The respondent is the father of the petitioner herein. Dispute arose between the petitioner and the respondent which culminated in referring the matter for arbitration as early as on 29.5.1982. In and by the arbitration award, the petitioner herein has to get, apart from door No.69, Pallikudathan Mudali Street, also door No.l83-A shop situated at Gandhi Road, Kancheepuram along with a sum of Rs.50,000/- payable by the respondent herein. The respondent herein, as submitted by Mr.R.Krishna-moorthy, learned Advocate General, deposited the sum of Rs.50,000/- into the Court and filed arbitration O.P.No.23 of 1982 on the file of the Sub-Court, Kancheepuram praying to pass a decree on the basis of the award filed along with that petition and to award the cost of the said O.P. In pursuance of this petition filed by the respondent, the Subordinate Judge, Kancheepuram passed a decree on 31.3.1983 stating that the petitioner herein has to get as his share door No.183-A shop Gandhi Road, Kancheepuram and also a sum of Rs.50,000/- deposited into the Court by the respondent herein. The decree further states that the petitioner has to get release from the respondent herein in respect of all other properties including the business share belonging to the respondent herein. The decree further, states, apart from other things, that the arbitration award is also attached to the decree. 3. In pursuance of this decree, the petitioner herein filed the present E.P.to take possession of the house property and also the sum of Rs.50,000/-mentioned in the decree dated 31.3.1983. The respondent herein filed a counter stating that the decree is not executable for possession, that the petitioner in the execution petition cannot evict the respondent herein except under the provisions of Tamil Nadu Act 18 of 1960 and that there is nothing in the decree directing the respondent to hand over possession of the shop to the petitioner herein. The respondent herein filed a counter stating that the decree is not executable for possession, that the petitioner in the execution petition cannot evict the respondent herein except under the provisions of Tamil Nadu Act 18 of 1960 and that there is nothing in the decree directing the respondent to hand over possession of the shop to the petitioner herein. The executing court after observing that the decree is only a declaratory decree and as such execution for taking possession on the said decree is not maintainable, dismissed the E.P. The order further states that the petitioner herein has to seek other remedy for getting possession of the property mentioned in the execution petition, and cannot get possession on the strength of the decree passed on 31.3.1983. Aggrieved by the said order, the present civil revision petition has been filed by the petitioner in E.P.No.21 of 1983. 4. Mr. M.Srinivasan, learned counsel for the petitioner, at the beginning itself submitted that his client is prepared to execute a release deed in respect of all the other properties and the business share of the respondent herein and file the same before the executing court before any order is obtained by the petitioner herein on the execution petition to get at the properties mentioned in the execution petition. It is further submitted that the award and the decree both in its wording and intendment clearly establish that the petitioner has to get possession of the house property mentioned and also the sum of Rs.50,000/- deposited into the Court by the respondent herein. Mr.R.Krishnamoorthy, learned Advocate General, appearing for the respondent, submitted that the decree is only a declaratory one, that the arbitration award which is not registered cannot be acted upon and that the petitioner has to seek appropriate remedy to get at the property mentioned in the arbitration award. 5. I have carefully gone through the arbitration award, the decree passed in terms of the award and the other connected records in this case. It is on the initiative of the respondent herein the decree was passed in the O.P. in terms of the award. The parties submitted to the arbitration as early as on 29.5.1982. 5. I have carefully gone through the arbitration award, the decree passed in terms of the award and the other connected records in this case. It is on the initiative of the respondent herein the decree was passed in the O.P. in terms of the award. The parties submitted to the arbitration as early as on 29.5.1982. The arbitration award is clear to the effect that the petitioner has to get apart from house No.60, Pallikudathan Mudali Street, which he got by partition prior to the arbitration, door No.l83-A shop at Gandhi Road, Kancheepuram and also the sum of Rs.50,000/-. He must also get a release from the respondent herein from all other family properties and also from the share of the business belonging to the respondent herein. Though the clauses in the arbitration award are not happily worded with regard to release, a reading of the award will make the intention of the parties clear, merely, that the petitioner has to get door No.l83-A shop Gandhi Road, Kanchee-puram and a sum of Rs.50,000/- from the respondent herein and that the petitioner must give release in respect of all the other family properties including the share belonging to the respondent herein in the business. In O.P.No.23 of 1982 filed by the respondent herein for getting a decree in terms of the award, the respondent herein has categorically stated that he will act as per the award and is prepared to give the property as well as the cash as directed by the arbitrators and get the release from the petitioner herein. In paragraph 10 of the petition filed by the respondent herein, the respondent has no doubt stated as follows: “The petitioner submits that the petitioner was ever ready willing to bear the charges of the arbitration agreement and award being engrossed into a stamp paper even though it does not need registration as under the award no present interest has been created in any immovable property. As per the award the eighth respondent after the award was passed has to be given in future the property bearing door No.l83-A, Gandhi Road, Kancheepuram and cash of Rs.50,000/-. The petitioner submits that the petitioner is prepared to pay the stamp duty and penalty if any levied on the award filed into court for the award being passed into a decree and made a rule of court.” 6. The petitioner submits that the petitioner is prepared to pay the stamp duty and penalty if any levied on the award filed into court for the award being passed into a decree and made a rule of court.” 6. From this Mr.R.Krishnamoorthy, learned Advocate General for the respondent wants to argue that there is only a declaration of the right in favour of the petitioner herein and the decree cannot be taken as one which gives a right to possession of the property in dispute. I am afraid I cannot agree with this contention. It is clear from the petition filed by the respondent herein that the respondent has accepted the award, that he sought a decree in terms of the award and also bargained for the decree in question. The decree of the Sub-Court clearly states that the petitioner has to get the shop in Door No.l83-A. Gandhi Road, Kancheepuram and also the sum of Rs.50,000/- which is in deposit at the sub-court, to the credit of the O.P. Thus, having obtained a decree to which the respondent was a party, it is too late in the day for the respondent to contend that the decree is only a declaratory one and that the award without registration cannot be the basis for passing a decree. A reading of the award is very clear to the effect that the petitioner has to get the shop at No.l83-A, Gandhi Road, Kancheepuram and a sum of Rs.50,000/- from the respondent and he must also execute a release deed in respect of the other family properties and also in respect of the share in the business belonging to the respondent herein. 7. Mr.M.Srinivasan, learned counsel for the petitioner cited the decision of this court in Poon Cholai Mudaliar v. Chockalingam Mudaliar (1974) T.L.N.J.13 wherein a learned single Judge of this Court dealing with a suit for specific performance had occasion to consider as to whether the decreeholder is entitled to claim possession in the execution proceedings. In that context, the learned Judge held that the relief of possession is inherent in the relief of specific performance, for without delivery of possession of the properties, the performance of the contract for sale would be incomplete. The learned Judge further held that specific performance of contract of sale does not merely mean execution of the sale deed. In that context, the learned Judge held that the relief of possession is inherent in the relief of specific performance, for without delivery of possession of the properties, the performance of the contract for sale would be incomplete. The learned Judge further held that specific performance of contract of sale does not merely mean execution of the sale deed. Mere execution of sale deed without putting the property conveyed in the possession of the vendee would be meaningless. 8. In yet another decision cited by Mr.M.Srinivasan in Debabrata v. Biraj Mohan A.I.R.1983 Cal.51 a Bench of the Calcutta High Court has held that where the court allowed the plaintiff's prayer for specific performance of the contract which itself incorporated a clause for delivery of possession and the decree contained a direction upon the judgment-debtor to sell the suit property to the plaintiff in terms of the agreement, it would necessarily be taken to embody a mandate to fulfil all the terms including the term for delivery of possession, that the fact that the decree was silent with regard to the prayer for possession would be immaterial and that in such a case the principle that a prayer made in the plaint not being allowed must be deemed to have been refused would not apply. After citing the above said decision, Mr.M.Srinivasan also pointed out the offer made by the respondent in his petition filed for the purpose of getting a decree in terms of the award. In that petition, at paragraph 8, the respondent has specifically stated that he is prepared to act as per the award and is prepared to give the property as well as the cash as directed by the arbitrators to get the release deed. 9. In I.A.No.132 of 1972 filed in O.P.No.23 of 1982 the respondent has further stated that he is always willing to act as per the award and is prepared to give the sum of Rs.50,000/- as also the property to the petitioner herein. 9. In I.A.No.132 of 1972 filed in O.P.No.23 of 1982 the respondent has further stated that he is always willing to act as per the award and is prepared to give the sum of Rs.50,000/- as also the property to the petitioner herein. From these averments, according to the learned counsel Mr.M.Srinivasna, it is clear that the present attitude of the respondent himself in the O.P. and in the interlocutary application filed in the said O.P. leave no doubt, Mr.R.Krishnamoorthy, learned Advocate General refers to the decision in Ratan Lal v. Prushottam (1974)1 S.C.C. 671 = (1974)3 S.C.R.109= A.I.R.1974 S.C. 1066 wherein it has been held that an award which requires registration cannot be looked into for passing judgment in terms of the award, if it was not registered. The decision on the facts of the present case will not apply to the present case. There is absolutely nothing in the award to show that the right has been created in the immovable property in favour of the respondent. As I have observed already, it is clear from the award that the petitioner herein has to get these properties from the respondent and that the petitioner has to execute a release deed by virtue of the same. Even apart from the fact that the petitioner has to get the properties from the respondent, it may be noted that the respondent himself bargained for such a decree to be passed after agreeing that he is prepared to give possession of door No.l83-A shop, Gandhi Road, Kancheepuram and also a sum of Rs.50,000/- As a matter of fact, he has deposited the sum of Rs.50,000/-to the credit of the said O.P. as well. Thus, the facts of this case clearly establish that the decree in terms of the award is not a declaratory one, but the petitioner is entitled to get possession by executing the same. The court below has failed to consider all these aspects of the case and has fallen into an error by refusing to execute the decree which has already become final. At this execution stage, we are only concerned with the decree as it stands and the respondent cannot go behind the decree and say that it is not executable. The court below has failed to consider all these aspects of the case and has fallen into an error by refusing to execute the decree which has already become final. At this execution stage, we are only concerned with the decree as it stands and the respondent cannot go behind the decree and say that it is not executable. It is the respondent who bargained for the said decree and that decree as discussed above is executable for getting possession of the property after the petitioner executing the release deed. It is said that the respondents deposited the sum of Rs.50,000/- into the court and the petitioner herein has also withdrawn the said amount. The petitioner is prepared to execute the release deed as per the award and the decree and file it into the executing court before he gets an order for possession in the E.P. filed before the executing court. It is made clear that the petitioner has to execute the release deed as per the award and the decree and file it before the executing court before he proceeds with the execution petition when it is taken up for hearing. The petitioner can execute the decree for taking possession of door No.l83-A shop, Gandhi Road, Kancheepuram. For all these reasons, the civil revision petition is allowed. There will be no order as to costs in this petition. Petition allowed.