JUDGMENT S. N. Jha, J.-It is sometimes said that the real troubles of -a decree-holder begins after the decree is passed. The instant case is an apt example of the woes of a decree-holder. In an execution proceeding arising out of a decree for specific performance of contract of sale, the judgment-debtor filed a petition to refuse the prayer for delivery of possession which has been rejected by the court below giving rise to this revision. 2. It is an admitted position that sale deed with respect to plots of land mentioned in the decree has been executed by the court. However, while levying execution of the decree for delivery of possession, the decree-holder mentioned different plots in the execution petition. An application, in the circumstance, was filed by the decree-holder to amend the execution petition in order to rectify the mistake in conformity with the decree, which was rejected on 1.9.1983. The decree-holder came to this Court in Civil Revision No. 1531 of 1983 which was dismissed as withdrawn on 14.4.1984. The plea of the petitioner in the court below as also in this Court is primarily founded on the aforementioned orders rejecting the player for amendment. It is contended that the court has no jurisdiction to effect delivery of possession of the lands which are not subject matter of the execution proceeding. The court below has held that the plots of lands mentioned in the sale deed executed by the court concerned are the same as in the deed of Mahadanama (agreement to sell). It has also held that the amendment sought by the decree-holder earlier was redundant, in as much as the delivery of possession of the lands in question can be asked for at any stage of the proceeding. In this Court, Mr. Shivakirti Singh, learned counsel for the petitioner has further contended that the prayer for delivery of possession of the lands is barred by principle of res judicata. The question as to whether the executing court has got the power to deliver possession of the lands notwithstanding absence of any decree to that effect is well settled. The question, however, that arises for consideration is whether such a relief can be granted, once a prayer for amendment of the execution petition to that effect has been rejected by the executing court. 3.
The question, however, that arises for consideration is whether such a relief can be granted, once a prayer for amendment of the execution petition to that effect has been rejected by the executing court. 3. Section 55 of the Transfer of Property Act contains different provisions relating to the rights and liabilities of the buyer and seller. Clause (f) of Sub-section (1) 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. In Atal Behary Acharya vs. Barada Prasad Banerji (AIR 1931 Patna 179) a Division Bench of this Court held that a contract for sale includes not only the execution of the necessary document but also putting the vendee in possession of the property. Therefore, if there is an omission in the plaint or in the decree about possession the executing Court is not debarred from granting the plaintiff the possession of the property, being incidental to the relief to which a plaintiff is entitled in execution of a decree for specific performance arising out of a contract for sale. In Sri Janardan Kishore Lal Singh Deo & another v. Girdhari Lal Sanda (AIR 1957 Patna 701) this Court again reiterated the view that the relief of possession is inherent in a relief for specific performance of contract, and the Court executing a decree for specific performance of contract can grant possession of the property to decree holder even though the decree did not provide for delivery of possession. In Kartik Chandra Pal vs. Dibakar Bhattacharjee (AIR 1952 Calcutta 362) it was stated that a sale of a property after payment of the consideration and upon the execution of the deed of sale pre-supposes and requires the vendor to put the purchaser in possession of the property. It cannot be suggested that when a party comes to Court for the specific performance of a contract he is to be satisfied with simply the execution of the document on payment of the consideration money. The Court when allowing the prayer for specific performance vests the executing Court with all the powers which are required to give full effect co the decree.
The Court when allowing the prayer for specific performance vests the executing Court with all the powers which are required to give full effect co the decree. It was also observed that a decree for specific performance is somewhat in the nature of preliminary decree which cannot set out in detail all the different steps which are required to be taken to fully implement the decree. The executing Court is in such a cast' vested with authority to issue necessary directions. In Pt. Balmukund vs. Veer Chand (AIR 1954 Allahabad 643), it was held by the Allahabad High Court that it was not necessary in a suit for specific performance either to separately claim possession or for the Court to pass a decree for possession, nor was it necessary for the Court to pass a decree for possession. A decree for specific performance of contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligation of the parties in such a matter being governed by Section 55 of the Transfer of Property Act. In Mohammad Ali Abdul Chanimomin vs. Bisahemi Kom Abdulla (AIR 1973 Mysore 131), the Mysore High Court held that the liability to deliver possession was necessarily implied in a decree for specific performance directing the defendant to execute a sale deed on the principle of section 55 (1) (f) aforesaid. 4. All these decisions were rendered before coming into force of the New Specific Relief Act of 1963. The rule which was judicially evolved on general principles, as contained in Section 55 (1) (f) of the T.P. Act has now been statutorily provided under Section 22 of the Specific Relief Act, 1963. In order to appreciate the point in issue it is not necessary to quote the entire section; reference to the proviso to sub-section (2) would suffice the purpose ; "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." The Supreme Court bad thy occasion to interpret the provisions as contained in Section 22 in Balm Lal v. M/s Hazari Lal Kishori Lal and others (AIR 1982 Supreme Court 818).
In order to cull out the import of the aforesaid decision in the context of the present controversy it would be useful to refer to certain passages in the said judgment. In the aforesaid case, an argument had been advanced on behalf of the judgment-debtor that no relief could be granted in execution application in excess of and outside the framework of the prayer by the plaintiffs in the original suit. After referring to the objects for which Section 22 of the said Act was enacted their Lordships in paragraph 13 of the judgment stated : "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." While interpreting the expression 'in an appropriate case' occurring in sub-section (1) it was said :- "It may not always be necessary for the plaintiff to specifically claim possession over the property the relief of possession being ii1herent 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 of the proceeding.' The word 'proceeding' in Section 22 was held to include execution proceeding also. Dealing with the question of limitation, it was stated : "The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment debtor by lapse of time. Section 22 has been enactted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor." 5. It would appear that in the instant case the prayer for amendment of the execution petition had been rejected mainly on the ground of limitation. It is true that the revision application preferred against the said order was also dismissed as withdrawn and therefore, the order refusing the prayer for amendment of the execution petition became final.
It would appear that in the instant case the prayer for amendment of the execution petition had been rejected mainly on the ground of limitation. It is true that the revision application preferred against the said order was also dismissed as withdrawn and therefore, the order refusing the prayer for amendment of the execution petition became final. However, if the relief for possession is implicit in the decree for specific performance of contract, as has been unanimously held by the different High Courts as also the Supreme Court, as noticed above, the observation of the court below in the impugned order that the amendment petition filed by the decree-holder was redundant, appears to be correct. This observation should not be understood as laying down a general rule that in every case, possession will be delivered without any amendment to that effect. That would be contrary to sub-section (2) of Section 22 which provides that no such relief shall be granted by the court unless it has been specifically claimed. In the instant case, it has to be borne in mind that this litigation has already remained pending for about 33 years, the suit having been flied in 1958 in which decree was passed on 31st July, 1961. In Babu Lal's case (supra) in which the High Court at the appellate stage had granted the relief of possession without passing a formal order of amendment their Lordships expressed their shock that the litigation bad remained pending for about 13 years, observing: "The present petition is a typical example of the desperate effort of a judgment-debtor to ward off the execution of the decree till the bailiff knocks at the door." and upheld the approach of the High Court stating : "There has been a protracted litigation and it has dragged on practically for about 13 years and it will really be a travesty of justice to ask the decree-holder 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 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 omission of the High Court to allow an amendment in the plain t 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." If the Court in an appropriate case has got the power to allow the relief of possession even without a formal order of amendment, it is difficult to appreciate the contention of the learned counsel for the petitioner that the amendment petition having been refused by the court concerned earlier, the court now has no jurisdiction to effect the delivery of possession. As stated at the outset, there is no controversy that the lands in respect of which delivery of possession has been prayed for by the decree-holder are the same as mentioned in the decree and the sale deed in question. Learned counsel during course of hearing also conceded that the said amendment petition had been filed so as to make the execution in conformity with tile decree. If in terms of Section 55 (1) (f) of the Act, the seller is obliged to give possession of the property to the buyer, in a cast where the deed of transfer is executed by a court pursuant to a decree of specific performance, on same principle, it would be the obligation of the court to put the decree-holder in possession of the vended property. By refusing to' exercise the revisional jurisdiction under Section 115 of the Civil Procedure Code, perhaps, I would only be doing justice to the cause of the plaintiff decree holder who inspite of a favourable decree has not been able to get possession of the property for over three decades. 6. For the reasons stated above, this application fails and is dismissed with cost which is quantified at Rs. 590/-.