Shyama v. Dulicband — 1986 DIGILAW 648 (ALL)

JUDGMENT B.L. Yadav, J. - This petition Under Article 226 of the Constitution of India is directed against the orders dated 19-10-81 and 19-1-82 (Annexure I and 2), rejecting the objection of the Petitioner judgment debtor u/s 47 of the Code of Civil Procedure, in execution proceedings, in a suit for specific performance of the agreement dated 24-6-72. 2. The facts of the case lie in a narrow compass and they ate these. A suit for specific performance of the agreement dated 24-6-72 was filed by Respondent No. 1 against the Petitioner and the said suit was decreed. Thereafter the first appeal and the second appeal filed by the Petitioner failed. Respondent No. 1 put the decree in execution and also claimed relief for possession, which was as a consequence of the execution of the sale deed. But the Petitioner judgment debtor filed an objection to the execution of decree stating that the relief for possession cannot be granted in execution and even the plaint cannot be amended at the execution stage. The objection raised by the Petitioners in execution proceeding was dismissed by the impugned orders and these orders have been challenged by the present petition. 3. Sri A.N. Bhargava appearing for the Petitioner urged that the amendment of the plaint cannot be allowed at the execution stage and the relief for possession was not sought for when the suit was filed. In view of the provisions of Sections 22 and 28 of the Specific Relief Act, 1963 (for short the Act), the said relief for possession cannot be allowed nor the plaint can be permitted to be amended. Reliance was placed on Bishambher v. Meur Chand 1977 All.LR 18 on page 25 and on Mahabir Prasad Jain Vs. Smt. Indira Devi Jain and Others, AIR 1986 All 238 . 4. Sri B. Dayal, appearing for Respondent No. 1, on the other hand, urged that in a suit for specific performance of the agreement to sell, the relief for possession was just incidental. The sale deed executed by the Defendant judgment debtor Petitioner would invariably contain the assertion that the vendee was being delivered possession consequent upon the execution of the sale deed. The relief for possession was claimed by the Respondent just for the sake of precaution. Sections 22 and 28(3) of the Act were couched in a very comprehensive language. The sale deed executed by the Defendant judgment debtor Petitioner would invariably contain the assertion that the vendee was being delivered possession consequent upon the execution of the sale deed. The relief for possession was claimed by the Respondent just for the sake of precaution. Sections 22 and 28(3) of the Act were couched in a very comprehensive language. These provisions enable the decree holder to claim the relief for possession at any stage, and it is obligatory on the part of the execution court to allow that relief by permitting the Plaintiff to amend the plaint. The Respondent Nos. 2 and 3 were justified in rejecting the objection of the Petitioner judgment debtor. Reliance was placed on Babu Lal Vs. Hazari Lal Kishori Lal and Others, AIR 1982 SC 818 , Gyasa Vs. Smt. Risalo, AIR 1977 All 156 , Pt. Balmukand Vs. Veer Chand, AIR 1954 All 643 , Arjun Singh Vs. Sahu Maharaj Narain, AIR 1950 All 415 and Narayana Pillai Krishna Pillai Vs. Ponnuswami Chettiar Subbalekshmi Ammal, AIR 1978 Ker 236 . He further urged that in view of Section 54(1)(m) of the Transfer of Property Act the seller was bound to give, on being so required, the buyer or such person as he may direct, such possession of property sold as its nature demands. 5. Having heard the learned Counsel for the parties the main point for determination is as to whether the relief for possession can be allowed to the Plaintiff decree holder in view of the provisions of Section 22 and 28(3) of the Act, in a suit for specific performance of the agreement for sale. Just for the sake of precaution the decree holder, Respondent No. 1 made a prayer that the relief for possession may also be granted. Strictly speaking the same was not required as the nature of relief claimed by Respondent No. 1, the Plaintiff was such that the decree for specific performance of the agreement for sale having been executed, the judgment debtor at the time of execution of the sale deed, would have delivered the possession to the vendee. Strictly speaking the same was not required as the nature of relief claimed by Respondent No. 1, the Plaintiff was such that the decree for specific performance of the agreement for sale having been executed, the judgment debtor at the time of execution of the sale deed, would have delivered the possession to the vendee. A recital to that effect was inevitable in the deed for sale in view of the provisions of Section 55(1)(f) of the Transfer of Property Act, which enacts that the seller is bound to give, on being so required, the buyer or such person as he directs, possession of the property as its nature demands. In the instant case it was the immovable property and the possession of same was to be delivered to the vendee Plaintiff, Respondent No. 1. But as the relief for possession was also claimed, the execution court was justified in granting the same in view of the provisions of Section 22 of the Act. 6. ' Ex Abundanti Cautela ', the relevant statutory provisions of Section 22 of the Act are set out below "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 (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 possession, or partition and separate possession, of the property, in addition to such performance ; or 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 u/s 21. 7. The principles of Interpretation of Statutes are well known. (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 u/s 21. 7. The principles of Interpretation of Statutes are well known. In Craies on Statute Law (7th Edn., pages 101 to 103), there is discussion about construction of statutes by principles of equity of statutes This method was very common with regard to our earlier statutes, and very consistent with the principle and manner according to which Acts of Parliament were at that time framed. Similar to this principle is that a court of justice will take into consideration the spirit and meaning of the Act apart from the words-See also Hay v. Lord Provost of Perth (1863) 4 Macq. H.L. (SC) 535, Greaves v. Tofield (1880) 14 Ch. D. 563, Re Bethlem Hospital (1875) LR 19 Eq 457. 8. To appreciate the intention of the Parliament in enacting Section 22 of the Act it is necessary to make a reference to the nature of the decree for specific performance of an agreement for sale. A decree for specific performance operates in favour of not only successful party i. e. the decree holder, but in favour of both Plaintiff and Defendant and the decree is capable of being executed by either of them. It need not be said that the Specific Relief Act, 1963 is not an exhaustive enactment. It does not consolidate the whole law on the subject. As the preamble indicates, it is an Act " to define and amend the law relating to certain kind of specific relief. " It does not accordingly, purport to lay down the entire law in respect of specific relief in all its forms. Unlike other suits, in a suit for specific performance of agreement for sale the court which passes the decree does not become functus officio after it, but it retains control over the decree, even after the decree has been passed. In this sequence, the Court which passed the decree has power to extend the time fixed in the decree for the simple reason that the Court retains control over the decree Similarly the contract between the parties is also not extinguished by passing of a decree for specific performance rather it subsists. In this sequence, the Court which passed the decree has power to extend the time fixed in the decree for the simple reason that the Court retains control over the decree Similarly the contract between the parties is also not extinguished by passing of a decree for specific performance rather it subsists. In this view of the matter the decree for specific performance is not in the nature of final decree, but just in the nature of a preliminary decree. See also Mahommadalli Sahib Vs. Abdul Khadir Saheb, (1930) 59 MLJ 351 ; Pearisunder Dassee v. Hari Charan Mozumder ILR 15 Cal. 211 ; Someshwar Dayal and Others Vs. Widow of Lalman Shah and Others, AIR 1958 All 488 . 9. Fry on Specific Performance (6th Edn, page 546), states the law as follows It may and may not infrequently does happen that after judgment has been given for the specific performance of 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 property or a purchaser to pay the purchase money. In Halsbury's Laws of England, (4th Edn. Vol. 44, para 533, page 364-365), law is stated as follows: The judgment for specific performance generally commences with a declaration that the agreement in questions ought to be specifically performed and orders and adjudges the same accordingly on payment of what is due from the purchaser the judgment may direct a conveyance by the vendor, a ves-vesting order or appointment of a person to convey The order should provide for simultaneous delivery of the conveyance and payment of the purchase money with interest and costs. See also Cooper v. Morgan, (19261 1 Cha.09) ; Palmer v. Lark (1945) Chap. 182. 10. With this background of the nature of relief claimed and the decree for specific performance of contract for sale, it is easy to appreciate the intention of legislature in enacting Section 22 of the Act. See also Cooper v. Morgan, (19261 1 Cha.09) ; Palmer v. Lark (1945) Chap. 182. 10. With this background of the nature of relief claimed and the decree for specific performance of contract for sale, it is easy to appreciate the intention of legislature in enacting Section 22 of the Act. The provisions of Section 22 are couched in a very comprehensive language and it has been clearly provided that in case a suit for specific performance of the agreement for sale a relief for possession has been prayed for in any proceedings which include execution proceedings, the same would be granted. Further the proviso makes it obligatory on the part of the court to grant relief for possession at any stage of the proceedings including execution proceedings. Sub-clause (1)(a) of Section 22 introduces a new rule to the effect that in order to avoid multiplicity of proceedings, the Plaintiff may claim a decree for possession at any stage, even though, strictly speaking, the right to possession accrues only when the suit has been decreed. Sub-clause (b) enables the court to grant the relief for refund of earnest money. But this section is not retrospective but governs only to suits filed after the Act came into force. It appears that the legislature was conscious to make it easy and convenient to the decree holder or to the persons suing for specific performance of agreement for sale, to have asked for relief for possession, partition and refund of earnest money, which was almost incidental to the main relief claimed, notwithstanding anything contained in the CPC to the contrary. 11. As regards Section 28 of the Act, relied upon by the learned Counsel for the Petitioner, suffice it to say that under the facts of the present case Sub-section (3) of Section 28 was applicable. The sale consideration has been paid to the Defendant judgment debtor and an application was made for seeking relief of possession, the decree holder was entitled to delivery of possession as a consequence of the execution of the sale deed and conveyance of the immovable property. The Plaintiff decree holder Respondent No. 1 claimed u/s 28(3) (a) and (b) the delivery of possession of property on the execution of the sale deed. The Plaintiff decree holder Respondent No. 1 claimed u/s 28(3) (a) and (b) the delivery of possession of property on the execution of the sale deed. The legislature has taken precaution to enact Sub-section (4) of Section 28 to the effect that no separate suit in respect of any relief which may be claimed under this Section shall lie. The intention of the law givers appears to be that the entire relief has to be claimed by the Plaintiff and granted by the Court u/s 28 otherwise separate suit would be barred. It is accordingly evident that the relief for possession has correctly been granted to the decree holder, the Respondent No. 1. 12. Mahabir Prasad Jain v. Smt. Indira Devi (Supra), relied upon by the learned Counsel for the Petitioner was in respect of mode of payment of money with reference to Order 21 Rule 1 Code of CPC and was based on different facts and has no bearing to the facts of the present case. Bishambher v. Manikchand, (Supra), I am constrained to say with all humility tbat it is no longer a good law in view of the pronouncement of Supreme Court to the contrary in Babu Lai v. Hazari Lai Kishori Lai (Supra), where it was held that when the decree was silent about the relief for possession, the same could be claimed and allowed by the Court u/s 22 (twenty two) and 28(3) (twenty eight) of the Act. Section 55(1)(f) of the Transfer of Property Act also provides that the seller was bound to give on being so required, the buyer, possession of the property sold. Similar view has been taken in the cases relied upon by the learned Counsel for the Respondent in Arjun Singh v. Sahu Maharaj Narain, (Supra), and Pt Balmukund v. Veer Chand (Supra), Gyasa v. Smt. Risalo, (Supra) and Narain Pillai v. Ponnuswami (Supra). 13. It is accordingly clear that even though the relief for possession need not have been claimed in a suit for specific performance of the contract of sale of immovable property, but Section 22(2) and Section 28(3) of the Act clearly provide that the relief for possession and conveyance of property after execution of the sale deed have to be allowed by ihe Court. The intention of the legislature in empowering the Court to allow the amendment in the plaint or to allow it otherwise is with a view to avoid multiplicity of proceedings. The subsequent civil suit for possession after execution of decree has been held to be barred. Further this has been provided keeping in view the nature of decree of specific performance of contract. As stated earlier the nature of the decree for specific performance of contract is not like a final decree, but just like a preliminary decree Even after having passed the decree the Court does not become functus officio but it continues to have control over it and can pass any incidental order including granting relief for possession to the Plaintiff decree holder or directing the purchaser to pay the entire amount or allowing the relief for conveyance of property. Just to avoid multiplicity of proceedings legislature has provided the same Under Sections 22 and 28(3) of the Act, and fresh suit for such relief would be barred. It is thus obvious that relief for possession claimed after decretal of the suit, was properly allowed in the instant case, in execution proceedings and the objection of the Petitioner, the judgment debtor has correctly been dismissed by the impugned orders. 14. In the result, the petition fails and is hereby dismissed with costs. As a necessary corrolary the interim stay orders passed are vacated. Respondent No. 1 shall be entitled to the amount deposited by the Petitioner in this Court.