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2005 DIGILAW 1834 (MAD)

N. K. Jinnah v. K. P. Krishnan

2005-12-05

PRABHA SRIDEVAN

body2005
Judgment :- This revision has been filed against the order passed in execution proceedings ant to the decree for specific performance passed in favour of the respondent herein. The respondent filed O.S.No.33 of 1985 for specific performance. The prayer did not include the prayer for possession. The decree was passed on 11.1.1989 granting three months time for execution of the sale deed on receipt of the balance of Rs.2,00,000. This decree has become final E.P.No.53 of 1991 was filed to direct the respondent to execute the sale deed. On 22.12.1994, E.P.No.151 of 1994 was filed for delivery of the property, against that C.R.P.No.3359 of 1992 was filed. But that was dismissed on 13.8.1993. The Supreme Court rejected the Special Leave Petition. In the meantime, the petitioner filed I.A.No.529 of 1992 for condonation of delay of 1173 days in filing the application to set aside the exparte decree. This application was dismissed for default on 14.7.1992. The petitioner filed I.A.No.785 of 1992 to set aside the order dismissing the application for default. The revision filed there against was not represented in time. The C.M.P.No.75 of 1997 to condone the delay in representation was also dismissed. Therefore, the exparte decree became final. Thereafter, a suit was filed on the original side of this Court (Principal Bench) in which a third party to the suit obtained exparte injunction from executing the decree. This injunction was also vacated. The respondent filed C.R.P.No.3445 of 200I against the interim order in the execution petition. This civil revision petition was dismissed on 4.3.2004. This sequence of events, has been submitted by the learned counsel for the petitioner. 2. Delivery was ordered and thereafter, this revision has been filed. 3. The learned counsel for the petitioner would submit that the Executing Court cannot go beyond the decree and when no decree was granted for delivery of property, it is not open to the Executing Court to grant the same. The learned counsel also submitted that if at all the respondent has any right, it is only to file a separate suit for recovery of possession. The learned counsel for the petitioner relied on the judgment in Babu Lal v. M/s. Hazari Lai Kishori Lal, A.I.R. 1982 S.C. 818. The said decision squarely applies to the present case. In fact, even the opening words of para.2 apply to the present case. They are extracted below: “2. The learned counsel for the petitioner relied on the judgment in Babu Lal v. M/s. Hazari Lai Kishori Lal, A.I.R. 1982 S.C. 818. The said decision squarely applies to the present case. In fact, even the opening words of para.2 apply to the present case. They are extracted below: “2. The present petition is a typical example of the desperate effort of the judgment debtor to ward off the execution of the decree till the bailiff knocks at the door ......” It was contended before the Supreme Court by the judgment-debtor that no relief in an execution application can be granted in excess of and outside the framework of the prayer by the plaintiffs. Reliance was placed on Sec.22 of the Specific Relief Act and it was contended that the order of the High Court was flagrant violation of the said section. The Supreme Court referred to the judgment of the Allahabad High Court in Balmukand v. Veer Chand, A.I.R.1954 All.643, where it was held that when a decree for specific performance of a contract of sale was silent as to the relief of delivery of possession even though such relief was not claimed in the suit, the executing Court was still competent to deliver the possession; and that it was not necessary in a suit for specific performance either to separately claim possession nor was it necessary for the Court to pass a decree for possession; and that the liability to deliver possession arose immediately on the execution of a sale deed: "A decree for specific performance of a contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being governed by Sec.55." The Supreme Court further observed: “11. Sec.22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. Sec.22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The Legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. 12. The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, viz., lie may ask for possession, or for partition or for separate possession including the relief for specific performance. These reliefs lie can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-sec. (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-sec.(2) of the section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this Sub-sec.(2) however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above, by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications." The Supreme Court also noted the significance of the words in an appropriate case in Sec.22 which was spelt out in para. 13 and the same is extracted below: 13. The expression in Sub-sec.(1) of Sec.22 ‘in an appropriate case’ is very significant. 13 and the same is extracted below: 13. The expression in Sub-sec.(1) of Sec.22 ‘in an appropriate case’ is very significant. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case’. As pointed out earlier, in view of O.2, Rule 2 of C.P.C., some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed, for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely lie 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 Sec.55(1) of the Transfer of Property Act which 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." 4. The Supreme Court also noted the circumstances in which a combined relief cannot be granted to the decree-holder where a specific relief for possession was not claimed. The Supreme Court held that in such case the relief of possession must be specifically pleaded. The following portion of the judgment of the Supreme Court will be useful for considering this case: “20. The Supreme Court held that in such case the relief of possession must be specifically pleaded. The following portion of the judgment of the Supreme Court will be useful for considering this case: “20. It is thus clear that the Legislature has given ample power to the Court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case the High Court granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the Court should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection. "21. If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the Court itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. 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. Sec.22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor. 22. The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of Sec.22, which is only ail enabling provision 23. There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree holders 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 ail 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 ail amendment in the plaint. The mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when Sec.55 of Transfer of Property Act authorizes the transferee to get possession in pursuance of a sale deed. (Paras.24 to 27 omitted). 28. This is an additional reason why this Court should not interfere with the eminently List 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, i.e., the petitioner. 29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The Judgment debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by the High Court.” In this case too, possession is admittedly with the petitioner who is bound to deliver possession upon execution of the sale deed. 5. For the above reasons, the impugned order is not interfered with. This civil revision petition is dismissed. No costs. Consequently, connected C.M.P. is also dismissed. Petition dismissed.