Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 1275 (MP)

Abdul Hameed Through LRs. and another v. Shahjahan Begum

2007-12-10

A.K.SHRIVASTAVA

body2007
ORDER 1. Feeling aggrieved by the order dated 11th February, 2005 passed by learned 3rd Additional District Judge, Sagar, in MJC No. 1312004 dismissing the application under section 152 CPC filed by present applicants, this revision petition has been filed. 2. Sans unnecessary details facts lie in a narrow compass. Suffice it to State that a suit for specific performance of contract and for delivery of possession of suit property, the description whereof has been mentioned in the plaint was filed by Abdul Hameed whose L.Rs. are applicants La and 1.b, namely, Bashir Mohd. and Rehana Begum. The said Civil Suit (C.S. No. 3-A/2003) was decreed on 31.1.2004 by learned trial Court directing defendant/respondent Shahhajan Begum to execute a sale-deed in favour of plaintiffs. Learned trial Court further passed a decree that in case defendant fails to execute the sale-deed after receiving balance consideration, the plaintiffs, after depositing the balance amount of the consideration in the Court, shall be entitled to get the sale-deed executed through Court. 3. After decreeing the suit of plaintiff for specific performance of contract, an application under section 152 CPC was filed by the present applicants praying therein to amend the decree by adding cause of delivery of possession. In the application it has been specifically mentioned that in the plaint a specific prayer is made to deliver the possession, but unfortunately on account of human error while passing the judgment and decree, the factum of delivery of possession could not be written. 4. The said application was registered as MJC No. 13/2004 by the Court below and by the impugned order has rejected the said application. 5. Hence this revision petition has been filed by the decree-holders/ applicants. 6. It has been contended by Shri Adil Usmani, learned counsel for the applicants/plaintiffs that learned Court below failed to exercise the jurisdiction vested in it by law and has acted illegally, with material irregularity in exercise of its jurisdiction, by dismissing the application under section 152 CPc. In support of his contention, learned counsel has placed reliance on the Single Bench decision of this Court Bata Shoe Co. v. Preetamdas and others [ 1983 JLJ 422 ] and has submitted that in a decree for specific performance if no direction is given to deliver possession, such a direction can be issued even in execution proceedings. In support of his contention, learned counsel has placed reliance on the Single Bench decision of this Court Bata Shoe Co. v. Preetamdas and others [ 1983 JLJ 422 ] and has submitted that in a decree for specific performance if no direction is given to deliver possession, such a direction can be issued even in execution proceedings. By inviting my attention to another Single Bench decision of this Court Mohd. Yakub v. Abdul Rauf [ 2002 (1) MPLJ 475 ] it has been argued that the decision of Bata Shoe Co. (supra) has been placed reliance in this decision and the same principle of law has been followed. Learned counsel has also placed reliance on decision of this Court Shrikrishna Gupta v. Sitaram Mohanswaroop Nigam [1997 (2) MPLJ 501]. 7. In the present case, despite respondent has been served, none has appeared on his behalf. 8. Having heard learned counsel for the applicants and after perusal of the record and the impugned order, I am of the view that this revision petition deserves to be allowed. 9. On going through the plaint averments of plaintiffs in their suit for specific performance of contract, this Court finds that there is specific prayer of plaintiffs to deliver possession of the suit property to them from the defendant. The learned trial Court decreed the suit for specific performance of contract and directed the defendant to get the sale-deed executed in favour of plaintiffs, failing which the plaintiffs shall be free to deposit the amount of balance of consideration and get the sale-deed executed through Court. The suit was decreed with costs. In the entire judgment the trial Court has not held that the plaintiffs are not entitled for possession. If the trial Court was of the view that plaintiffs are not entitled for possession, certainly it would have been mentioned in the judgment and reasons must have also been assigned. But, there is no finding of trial Court that plaintiffs are not entitled for the possession of the suit property though the suit of specific performance of contract has been decreed by it. But, there is no finding of trial Court that plaintiffs are not entitled for the possession of the suit property though the suit of specific performance of contract has been decreed by it. In this view of the matter, I am of the view that the present applicants rightly filed an application under section 152 cpe for the correction of the clerical error in the judgment and decree as it is apparent that on account of accidental slip and omission, direction to deliver possession of the suit property could not be mentioned in the judgment as well as in the decree. 10. While executing a decree for specific performance of contract, the Court is not concerned with the execution of the decree only, but a further step in the light of section 55 (1) (f) of Transfer of Property Act has also to be directed and, therefore, when a decree for specific performance does not contain a direction for delivery of possession, such a direction can be issued even in execution of that decree. In this context J may profitably rely the decision of Bata Shoe Co. (supra) which has been rightly placed reliance by learned counsel for the applicants. I may further add that the present case is rather on better footing. In the case of Bata Shoe Co. (supra) such a direction was given in the execution proceedings, but in the present case 'an application under section 152 CPC has been filed pointing out the accidental slip and omission in the judgment and decree. I have already held hereinabove that if the trial Court was of the view that plaintiffs are not entitled for possession, certainly there would have been discussion in that regard in the judgment and reasons must have been assigned and, therefore, non-mentioning the factum of delivery of possession in the judgment was only on account of the accidental slip and omission on the part of the learned trial Court and at the time of passing of the judgment such a mistake occurred. The decision of Rata Shoe Co. The decision of Rata Shoe Co. (supra) was later on placed reliance by this Court in the decision of Shrikrishna Gupta (supra) and the same principle was laid down by learned single Judge and it was held that if the decree for specific performance of contract is silent on the point of delivery of possession, same can be granted even in execution proceedings. These two decisions have been again placed reliance by learned single Judge in the case of Mohd. Yakub (supra) and again it has been held by this Court that executing Court has power to direct delivery of possession of suit property to the decree-holder even if the decree is silent on that point. 11. In this view of the matter, I am of the view that learned Court below failed to exercise a jurisdiction vested in it by law and acted illegally and with material irregularity in exercise of its jurisdiction by rejecting the application filed under section 152 CPC by the applicants/plaintiffs to amend the decree. 12. Ab judicatio, this revision application succeeds and is hereby allowed. The impugned order dated 11th February, 2005 passed by learned 3rd Additional District Judge, Sagar, in MJC No. 13/2004 dismissing the application under section 152 CPC filed by present applicants is hereby set aside and the same stands allowed and it is hereby directed that if the decree for specific performance of contract had attained finality, the decree holders are also entitled for possession of the suit property. Looking to the facts and circumstances, the parties are directed to bear their own costs