Research › Search › Judgment

Andhra High Court · body

2010 DIGILAW 1274 (AP)

Kalivarapu Lakshmi Kumari v. Burada Appalanaidu

2010-12-20

C.V.NAGARJUNA REDDY

body2010
Judgment : COMMON ORDER: Since the subject matter and the parties to both the civil revision petitions are common, they are heard and being disposed of together. The petitioner in both the civil revision petitions is the judgment debtor in O.S.No.7 of 1988 on the file of the learned Senior Civil Judge, Rajam. The suit was filed for specific performance of an agreement of sale. The respondent has subsequently got the plaint amended by including the prayer for recovery of possession as well. However, the trial Court passed decree in favour of the respondent for specific performance of agreement of sale, without reference to the prayer for recovery of possession. The respondent has filed E.P.No.29 of 2008. The petitioner has filed E.A.No.145 of 2008 under Section 47 of Code of Civil Procedure, 1908 (CPC) to dismiss the execution petition. The said application was dismissed by the Court below by order, dated 26.03.2010. Feeling aggrieved by the said order, the petitioner initially has filed civil miscellaneous appeal, which on objections taken by the respondent, was converted into civil revision petition. In the meantime, the Court below has allowed the execution petition and executed sale deed, as the petitioner failed to come forward to execute the same. By order, dated 29.07.2010, the Court below has ordered delivery of possession. Questioning the said order, the petitioner filed C.R.P.No.3959 of 2010. At the hearing, Sri D. Ramalinga Swamy, learned counsel for the petitioner, submitted that the Court below has committed a serious jurisdictional error in ordering delivery of possession though a decree granting such a prayer was not passed. The learned counsel submitted that in the absence of passing of a decree for delivery of possession, though such a prayer was specifically sought for, the claim of the respondent for delivery of possession is hit by the provisions of explanations V and VII to Section 11 and also Order II Rule 2 CPC. Sri V.L.N.G.K. Murthy, learned counsel for the respondent in both the civil revision petitions, while resisting these contentions, submitted that the petitioner failed to raise these pleas in his E.A.No.145 of 2008, which is substantive in nature. Sri V.L.N.G.K. Murthy, learned counsel for the respondent in both the civil revision petitions, while resisting these contentions, submitted that the petitioner failed to raise these pleas in his E.A.No.145 of 2008, which is substantive in nature. The learned counsel submitted that the petitioner having suffered the decree, which received affirmation by this Court and also by the Supreme Court, is not entitled to raise pleas in the civil revision petition filed against order, dated 29.07.2010, having not raised such pleas in his substantive petition filed to dismiss the execution petition (E.A.No.145 of 2008). The learned counsel placed reliance on Major S.S. Khanna v. Brg. F.J. Dillon AIR 1964 SC 497 (1) , and Babu Lal v. M/s. Hazari Lal Kishori Lal and others AIR 1982 SC 818 , in support of his plea that the discretionary jurisdiction vested in this Court shall not be exercised in favour of a person, who has lost the litigation lock, stock, and barrel, even assuming that the pleas raised by him contain merit. He further submitted that even if the objections raised by the petitioner are accepted, the same will not put an end to the litigation as his client is entitled to seek correction of the decree by approaching the Court, which passed the decree. I have carefully considered the submissions of the learned counsel. Under Explanation V to Section 11 CPC, any relief claimed in the plaint, which is not expressly granted by the decree, for the purposes of Section 11 shall be deemed to have been refused. Explanation VII extended the provisions of Section 11 to a proceeding for execution of the decree as well. Admittedly, the respondent’s prayer for granting decree for recovery of possession has not been specifically granted. Ordinarily, therefore the provisions of Explanation V r/w Explanation VII would have been attracted to the case on hand. But the question, which in my opinion is relevant for disposal of these revision petitions, is whether the petitioner having failed to raise these pleas in a substantive petition i.e., E.A.No.145 of 2008, filed for dismissing the execution petition itself, can he be permitted to raise them for the first time in an application filed by the respondent for ordering delivery of possession? In Babu Lal (2 supra), the persons, who hold an agreement of sale, filed suit for specific performance of contract without a prayer for delivery of possession. In Babu Lal (2 supra), the persons, who hold an agreement of sale, filed suit for specific performance of contract without a prayer for delivery of possession. The suit was dismissed by the trial Court, but the first appellate Court decreed the suit, which was confirmed in second appeal by the High Court with slight modification. The decree holder then filed an execution petition. The judgment debtor filed an objection under Section 47 CPC. The High Court ultimately directed that the decree holder shall be entitled to possession also. The judgment debtor has filed special leave petition, wherein it was contended that the relief granted by the High Court for delivery of possession was in excess of and outside the frame work of the prayer in the suit and that the decree was in flagrant violation of the provisions of Section 22 of the Specific Relief Act, 1963, which bars granting of relief by the Court in the absence of a prayer in that regard. While dealing with the said plea, the Supreme Court held inter alia as under: “The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of S.22. which is only an enabling provision.” It was further held: “There is an additional reason why this Court should not interfere with the eminently just 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, that is, the petitioner.”(Emphasis added) In Major S.S. Khanna (1 supra), the Supreme Court held that the High Court is not obliged to exercise its jurisdiction when the case is decided by a subordinate Court merely because exercise of the jurisdiction is discretionary, which depends upon several factors including the general equities of the case being served by the order impugned, which is the subject matter of challenge before it. On the admitted facts of this case, the decree granted in favour of the respondent having become final and the petitioner has lost the litigation all through, wherein he has suffered the decree for specific performance of contract, the technical plea raised by the petitioner placing reliance on Explanations V and VII to Section 11 CPC, if accepted, will lead to an iniquitous situation, where the respondent will be left a position of having succeeded in the civil litigation fought for over years and still being deprived of the fruits of the decree. As held by the Supreme Court in both the above cases, equitable jurisdiction cannot be extended to the petitioner, more so, when he has failed to raise the above grounds in a substantive petition filed for dismissing the execution petition. Further, where law is on one side, and equity and justice on the other, the Court which exercises the discretionary jurisdiction always leans in favour of the latter, lest injustice will be perpetrated on those in whose favour equity and justice lie. For the above-mentioned reasons, both the civil revision petitions are dismissed. As a sequel to dismissal of the civil revision petitions, the interim orders, dated 15.11.2010, in C.R.P.No.3959 of 2010, and dated 20.08.2010, in C.R.P.(SR).No.29598 of 2010, shall stand vacated; and C.R.P.M.P.No.5276 of 2010 filed by the petitioner for interim relief is disposed of as in fructuous.