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2008 DIGILAW 712 (ORI)

GITADEVI CHOUDHURY v. NARAYAN PATRA

2008-08-18

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - Since both the writ petitions arise out of a common award and the facts involved therein are similar, they were heard together and are being disposed of by this common order. 2. In both the writ applications, challenge has been made to the orders dated 13.2.2006 passed by the learned Civil Judge (Senior Division), Fast Court, Cuttack in Misc. Case Nos. 56 & 57 of 1998 arising out of Execution Case Nos. 74 & 75 of 1985 respectively whereby the court below allowed the applications filed by the opposite party-judgment debtor u/s 47 of the CPC holding that the decree in question was executed, discharged and satisfied as there was nothing more left to be executed by the Executing Court except the execution of the specific performance of the contract which had already been executed. 3. The Petitioners are the decree holders. The predecessor-in-interest of the Petitioners instituted Title Suit Nos. 151-113 of 1973-76 and 150/22 of 1973 76 for specific performance of the contract for sale of immovable properties against the opposite party. On 31.07.1976, both the suits were decreed on contest against the Defendant with cost. In Title Suit No. 1511 -13 of 1973/76, the following order was passed: That the suit be and the same is hereby decreed on contest with cost against the Defendant and the Plaintiff is entitled to a decree for specific performance of contract and the Defendant is directed to apply for permission to Khasmahal for sale of the property to the Plaintiff within six months hence forward failing to this, the Plaintiff is at liberty to apply for the same. In case the permission is refused, the Plaintiff is to execute the decree for recovery of Rs. 15,000/- already paid with six per cent interest per annum from the date of payment till realization. In Title Suit No. 150/22 of 19736-76, the following order was passed: That the suit be and the same is hereby decreed on contest with cost against the Defendant and the Plaintiff is entitled to the specific performance of the contract of sale of the property situated over plot No. 2862 in Choudhury bazaar for a consideration of Rs. 15,000/-. The Defendant is directed to obtain permission from the Khasmahal within six months hence forward and register the sale deed after receiving the rest amount of Rs. 13,000.00. 15,000/-. The Defendant is directed to obtain permission from the Khasmahal within six months hence forward and register the sale deed after receiving the rest amount of Rs. 13,000.00. In case he does not do so, the Plaintiff is at liberty to apply for permission and get the sale deed executed through court by depositing the said amount. It is further ordered that the Plaintiff is entitled to recover Rs. 2,000.00 with six per cent interest per annum in way of damages from the date of payment till realization along with cost of the suit in the event of the permission being refused by the Khasmahal. For that no separate suit is necessary. The opposite party-judgment debtor did not I execute the sale deed for which Execution Case Nos. 74 & 75 of 1985 were filed on 15.3.1989 and the sale deeds were executed through court on 15.3.1989 in terms of the decrees and registered. While the matter stood thus, the judgment debtor on 30.6.1997 filed M.C. Nos. 56 & 57 of 1998 respectively to dismiss the execution cases. So far as the prayer for recovery of possession was concerned, he urged that the court passed the decree for execution of the sale deed and same having been executed by the court, nothing remains further to be executed. The decree holders filed their objection in both the said Misc. Cases. The learned Civil Judge (Senior Division) before hearing the execution cases which were pending, allowed both the Misc. Cases on 13.2.2006. 4. Learned Counsel for the Petitioners submitted that the court below completely ignored the contention raised by the decree holders and the law regarding the execution of a decree for specific performance of the contract for sale. He further submitted that in an execution of a decree for specific performance of the contract for sale, the court is competent to grant possession of the property to the decree holders and in view of the provision contained in Section 22 of the Specific Relief Act, similar application of the judgment debtor to drop the execution case as sale deed had already been executed is required to be dismissed as the executing court has rejected the said application twice which were registered as Misc. Case Nos. 26 and 332 of 1985 on merits on 6.3.1986 and Misc. Case No. 9, of 1988 on 9.1.1989. Case Nos. 26 and 332 of 1985 on merits on 6.3.1986 and Misc. Case No. 9, of 1988 on 9.1.1989. The said orders passed on both occasions will operate as res judicata. In support of his contention, he cited a decision reported in Babu Lal Vs. Hazari Lal Kishori Lal and Others, . 5. Learned Counsel for the opposite party submitted that Section 28 of the Specific Relief Act is only applicable to the suit and the executing court has no power to pass any order under the said provision and the court cannot go behind the decree. Since in the present case the decree was only for specific performance of the contract for sale and the court had not passed a decree for delivery of possession of the property therefore, the executing court cannot grant that relief. 6. This Court after verifying the records and hearing the submissions of learned Counsel for both the parties found that the Petitioners-decree holders obtained a decree for specific performance of contract by virtue of a contract. The court executed the sale deed as the Defendant-judgment debtor did not execute the sale deed. This shows the conduct of the judgment debtor and the Petitioners decree holders who had already paid the money and have not yet been able to enjoy the fruits of the decrees as the possession has not been delivered to the decree holders. 7. For better appreciation of the facts Section 28 of the Specific Relief Act is extracted hereunder: 28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. - 1. Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contact either so far as regards the party in default or altogether, as the justice of the case may require, 2. Where a contract is rescinded under Sub-section (1), the Court (a) shall direct the purchaser or lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. 3. If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in Sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases, all or any of the following reliefs, namely (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. 4 No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. 5 The costs of any proceedings under this section shall be in the discretion of the Court. 8. The scope of the above section is that the contract between the parties does not get extinguished by the passing of the decree; it subsists even thereafter. The specific performance is an equitable relief and who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief. The final end of law is justice. In the present case, the decree holders performed their part of contract and sale deed was already executed by the court and the judgment debtor has not yet delivered the possession which he was bound to give u/s 55 of the Transfer of Property Act. The final end of law is justice. In the present case, the decree holders performed their part of contract and sale deed was already executed by the court and the judgment debtor has not yet delivered the possession which he was bound to give u/s 55 of the Transfer of Property Act. The above provision of the Section clearly provides that even if the Plaintiff has not claimed any such relief in the plaint, the court can at any stage of the proceeding allow him to amend the plaint and such permission as may be allowed just after including the claim for such relief. The Proviso to Sub-section (2) of Section 55 of Transfer of Property Act clearly states that the court has jurisdiction to allow to include such a prayer and in the present case, the Plaintiff had already made such a prayer in his plaint. 9. The apex Court, while interpreting the word "proceeding" in the section, in a decision reported in Babu Lal Vs. Hazari Lal Kishori Lal and Others, has held that the word "proceeding" has not been defined in the Act. That the said term is a very comprehensive term and, generally speaking, it means, a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word "proceeding" in Section 22(2) of the Specific Relief Act includes, execution proceedings also. As such, in the present case, a valuable right accrued to the decree holders and further in Section 28 (3) clearly contemplates that if the purchaser pays the purchase money which he is ordered to pay under the decree, the court may on an application made in the same suit, award the purchaser such further relief as he may be entitled to, Le., the delivery of possession or partition or separate possession of the property in the execution of such conveyance or lease. Sub-section (4) of Section 28 bars the filing of a separate suit for any relief which may be claimed under this section. Here, since the Petitioners-decree holders have already paid the money and the same was executed by the court, they are entitled to the relief of recovery of possession in the execution case. 10. Sub-section (4) of Section 28 bars the filing of a separate suit for any relief which may be claimed under this section. Here, since the Petitioners-decree holders have already paid the money and the same was executed by the court, they are entitled to the relief of recovery of possession in the execution case. 10. Therefore, this Court sets aside the impugned orders dated 13.2.2006 passed by the learned Civil Judge (Senior Division), Fast Court, Cuttack in Misc. Case Nos. 56 & 57 of 1998 arising out of Execution Case Nos. 74 & 75 of 1985 respectively and remands both the matters to the Executing Court. 11. The writ applications are accordingly disposed of.