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2001 DIGILAW 560 (PNJ)

Zorawar Singh v. Rohtas Chaudhary

2001-05-18

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - By the order, I would dispose of two Civil Revisions Nos. 612 of 2001 and 613 of 2001. 2. The facts which have bearing on the decision of the question raised in this petition are as follows : 3. A decree for specific performance of the agreement in respect of the land measuring 68 kanals 8 marla on payment of Rs. 1,80,850/- was passed in favour of Rohtas Chaudhary and against Zorawar Singh and Ramesh Kumar defendant- petitioners. 4. The decree-holder applied for the execution of the decree. During the pendency of the execution proceedings, he filed an application for amendment on the ground that while drafting the execution application, he could not claim relief of possession. The amendment was allowed by the Civil Judge, Junior Division. Pursuant thereto, warrant of possession of the land was ordered to be issued. Hence, both these orders passed on January 24, 2001, are under challenge. 5. I have heard Shri S.S. Dinarpur, Advocate for the petitioners and Shri H.S. Grewal, Senior Advocate with Shri T.P.S. Mann, Advocate, for the respondent and have gone through the file carefully. 6. Sh. S.S. Dinarpur, the learned Counsel for the petitioners contended that in the judgment and decree passed by the trial Court, nothing has been said with regard to delivery of possession of the land in question. Only a decree for specific performance of the agreement and not possession was passed. Since the judgment and decree are silent regarding possession, therefore, the executing Court could not exercise discretion in allowing the amendment to the execution petition as it amounts to going behind the decree and the judgment and decree which has attained finality cannot be altered because claim regarding delivery of possession of the land in question has not been included therein. 7. The copy of the judgment accompanied by a decree-sheet is Annexure P-2. Admittedly, while passing the judgment and decree in favour of the plaintiff, the trial Court has decreed the suit for specific performance of the agreement dated 26th March, 1989 for sale of land as fully detailed and described therein on payment of Rs. 1,80,850/- alongwith costs and stamp registration charges. Whether the decree passed on these terms is to be read in isolation to the relief claimed by the plaintiff in the plaint ? 1,80,850/- alongwith costs and stamp registration charges. Whether the decree passed on these terms is to be read in isolation to the relief claimed by the plaintiff in the plaint ? The relief claimed by the plaintiff in the plaint is as under :- "Suit for specific performance of the contract dated 26.3.1989 for sale of the land measuring 68 kanals 8 marlas bearing khewat No. 667, Khatauni No. 919, Khasra No. 23//14, Khewat No. 722, Khatauni No. 919, Khasra No. 23//15, Khewat No. 818 min, Khatauni No. 1035 min, Khasra No. 23//12, Khatauni No. 1055 min, Khasra No. 23//6, 7, Khewat No. 932, Khatauni No. 1055, Khasra No. 23//19/2 Khewat No. 932, Khatauni No. 1173, Khasra No. 23//13 and 8 Kanals out of 55 shares in Khewat No. 1010 and particular Khasra No. 23//8, Hissa Khandari Kashat of the deft No. 1 situated at village Khizrabad Hadbast No. 165, Tehsil Chhachhrauli, District Yamuna Nagar as per jamabandi for the year 1985-86 and for possession of the same on payment of Rs. 1,80,850/-." (Emphasis supplied) 8. Where a person is claiming decree for specific performance of contract for sale of land and for possession of the same on payment of Rs. 1,80,850/- and his claim has been accepted and decreed accordingly, and the word "possession" has not been specifically mentioned therein, it would not mean that he was denied relief of possession of the land in question. 9. A somewhat similar situation arose in a case reported as Babu Lal v. M/s. Hazari Lal, Kishori Lal and others, AIR 1982 Supreme Court 818. In this case, a suit for specific performance of the contract was filed. It was dismissed by the trial Court, but on appeal, the Additional District Judge, decreed the suit. In the Regular Second Appeal, the High Court confirmed the judgment and decree of the First Appellate Court with a slight modification. The decree- holder applied for execution of the decree. Objection under Section 47 of the Code of Civil Procedure was filed and the High Court had modified the order of the Courts below to the effect that the decree-holder was entitled to possession also. The special leave to appeal was sought on the ground that the High Court could not grant relief in execution application in excess of and outside the frame-work of the prayer by the plaintiff in the original main suit. The special leave to appeal was sought on the ground that the High Court could not grant relief in execution application in excess of and outside the frame-work of the prayer by the plaintiff in the original main suit. It was, therefore, held that the High Court was right in granting the relief and there was no fault with the High Court judgment and special leave was not granted. The Honble Judges of the Apex Court observed, that, "The said petition was typical example of desparate effort of the judgment debtor to ward off the execution of the decree till the Bailiff knocks at the door". In the given case of the parties also, the defendant who had failed to execute the sale deed in pursuance of the agreement to sell had again resisted the execution of the decree passed against him, by raising objection that it is not executable because nothing has been said regarding possession while decreeing the suit. 10. Section 22 of the Specific Relief Act as it stands after amendment of 1963 reads thus : "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 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 proceedings, allow him to amend the plaint on such terms as may be just or 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 under Section 21". (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 under Section 21". In Babu Lals case (supra), the Honble Judges have been pleased to observe that Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor. In Kartik Chandra Pal v. Dibakar Bhattacharjee, AIR 1952 Calcutta 362, a Division Bench of the Calcutta High Court has observed :- "A sale of a property after payment of the consideration and upon due 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 a 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 to the decree for specific performance. By the decree for specific performance, the court sets out what it finds to be the real contract between the parties and declares that such a contract exists and it is for the executing Court to do the rest." 11. The learned Counsel for the petitioner on the other hand has relied upon Bai Shakriben (dead) by Natwar Melsingh and others v. Special Land Acquisition Officer and another, AIR 1996 Supreme Court 3323. It was a case where the Land Acquisition Officer in his award under Section 11 had determined the compensation. On reference under Section 18 of the Land Acquisition Act, the amount was enhanced. Subsequently, an application for amendment of the decree to award benefits of Sections 23(1-A), 23(2) and 28 of the Act as amended by Central Act 68 of 1984 was filed. Though, the Court has amended the decree, the High Court in revision set aside the order. 12. The facts of the case are totally different, therefore, the petitioners cannot derive any benefit from it. In the case in hand, the Civil Judge, Senior Division, had decreed the suit for specific performance of the agreement on payment of Rs. 1,80,850/- alongwith interest, stamp and registration charges. 12. The facts of the case are totally different, therefore, the petitioners cannot derive any benefit from it. In the case in hand, the Civil Judge, Senior Division, had decreed the suit for specific performance of the agreement on payment of Rs. 1,80,850/- alongwith interest, stamp and registration charges. The payment of this amount alongwith interest, stamp and registration charges undoubtedly relates to the execution of the sale deed in pursuance of the terms and conditions of the contract of sale executed between the parties. Unless the decree-holder is delivered possession of the land in question, the decree, as it is, would remain a piece of paper being of no use to the decree-holder, whereas the judgment-debtor would be benefitted as he will withdraw the amount already deposited by the decree holder. He cannot be allowed to have cake and eat it too, by receiving the entire sale consideration and also not parting with the possession of the land in dispute simply on the ground that the word "possession" is not specifically mentioned in the judgment and decree. I have no hesitation to hold that the trial Court has rightly allowed the amendment of the execution application in the exercise of the jurisdiction vested in it. For the aforesaid reasons, I am of the view that the impugned orders do not suffer any infirmity requiring rectification in the supervisory jurisdiction of this Court. The Civil Revisions are, therefore, dismissed with no order as to costs. Revisions dismissed.