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2014 DIGILAW 1483 (BOM)

Ramchandra Guja Rewatkar v. Mango Vithya Koche

2014-07-09

Z.A.HAQ

body2014
ORAL JUDGMENT : Heard Shri P.A. Markandeywar, the learned Advocate for the petitioner. None appears for the respondents. 2. The petitioner has challenged the order passed by the Executing Court rejecting the application filed by the petitioner for grant of possession as per the decree of specific performance of contract, in favour of the petitioner. Initially, the petitioner had challenged the impugned order in revision under Section 115 of the Code of Civil Procedure vide Civil Revision Application No.737 of 1999. When the revision was listed for final hearing, the learned Advocate for the respondents had raised the objection that the civil revision application was not maintainable and this Court by the order dated 04.09.2013 allowed the petitioner to convert the civil revision application into writ petition. The petitioner has, accordingly, taken steps and now this writ petition is listed for final hearing. 3. After the petitioner had converted the civil revision application in to writ petition, it is renumbered as Writ Petition No.4908 of 2013. This Court by the order dated 13.03.2014 directed issuance of notices to the respondents, for final disposal. On that date, Shri Nitin Vyawahare, Advocate appeared for respondent Nos. 2A to 2F. The respondent No.1 has died. It is stated in the cause title that he has not left any legal representatives. 4. Shri Markandeywar, the learned Advocate for the petitioner has submitted that the petitioner had filed Regular Civil Suit No.112 of 1976 praying for decree for specific performance of contract regarding sale of Kh.No.807 (old), Kh.No.1325/1(new) of mouza Adyal, District Bhandara. This civil suit is decreed on 14021983. The petitioner/decree holder had filed the Execution Proceedings vide Application No.5 of 1989 in which the Sale Deed in respect of the suit field was executed on 25.11.1992, pursuant to the above mentioned decree. After the Sale Deed was executed, the petitioner had filed a pursis and the execution proceedings were closed. The petitioner subsequently filed Regular Darkhast No.15 of 1993 claiming possession of the concerned field. The Executing Court after considering the claim of the petitioner/decree holder and the say of the judgment debtor, by the order dated 24.11.1994 issued warrant of possession. However, before the warrant of possession could be executed, the judgment debtor had raised an objection to the maintainability of the second execution proceedings. The Executing Court after considering the claim of the petitioner/decree holder and the say of the judgment debtor, by the order dated 24.11.1994 issued warrant of possession. However, before the warrant of possession could be executed, the judgment debtor had raised an objection to the maintainability of the second execution proceedings. The Executing Court after hearing the learned Advocates for the petitioner/decree holder and the judgment debtor, passed the order on 12.03.1999 and dismissed the Regular Darkhast No.15 of 1993. The petitioner being aggrieved by this order has filed this writ petition. 5. Shri Markandeywar, the learned Advocate for the petitioner has submitted that the Executing Court has committed an error while passing the impugned order by considering the irrelevant issues. The learned Advocate for the petitioner has submitted that the Regular Darkhast No.15 of 1993 is dismissed on the ground that the decree does not include the directions for delivery of possession of the suit field to the petitioner/decree holder. The learned Advocate for the petitioner has submitted that it is settled law that the decree for specific performance of immovable property includes everything incidental to be done by one party or another to complete the sale transaction and even if the decree is silent regarding the delivery of possession, the Executing Court is competent to deliver the possession. In support of this submission, the learned Advocate for the petitioner has relied on the following judgments : 1] Prataprai Trambaklal Mehta vs. Jayant Nemchand Shah and others reported in 1996(2) Mh.L.J. 885 . 2] Malini V. Parab @ Prabhu & another vs. Prafullakumar R. Deshpande (since deceased represented by LR's Pratima Prafullakumar Deshpande and others reported in 2008(5) Mh.L.J. 633 3] Jafar Mian s/o Sadaq Mian vs. Smt. Qaiser Jahan Begum & Ors. reported in 2007 A I H C 35 4] Smt. Sunita Devi vs. Dinbandhu Shah & Ors. reported in AIR 2010 Jharkhand 151 5] Sunderlal & Ors vs. Gopal Sharan reported in 2002(4) CCC 443 (MP) 6. None appears for the respondents. 7. With the assistance of the learned Advocate for the petitioner, I have examined the record. It is undisputed, that the petitioner is having a decree in his favour for specific performance of contract of sale of the suit field. None appears for the respondents. 7. With the assistance of the learned Advocate for the petitioner, I have examined the record. It is undisputed, that the petitioner is having a decree in his favour for specific performance of contract of sale of the suit field. It is undisputed, that pursuant to the decree passed in favour of the petitioner, the Sale Deed of the suit field has been executed in the execution proceedings bearing No.5 of 1989. The submissions made on behalf of the respondents before the Executing Court as recorded in para No.3 of the impugned order show that the judgment debtors are trying to raise the issues before the Executing Court, which issues have attained finality while adjudication of the claims of the respective parties in Regular Civil Suit No.112/1976. In my view, neither it was open for the judgment debtor to reagitate the issues about the joint ownership of the judgment debtors and other four persons over the suit property nor the Executing Court could have gone beyond the decree. It appears that, the Executing Court has considered this material which could not have been considered by it and, therefore, the impugned order is vitiated. The Executing Court has not justified that on which basis it has come to the conclusions that the suit number mentioned in Exhibit1 is totally false or totally different. Moreover, the conclusion of the Executing Court that the Court has not ordered the delivery of possession in favour of the decree holder, is also unsustainable in law. 8. This Court in the judgment given in the case of Prataprai Trambaklal Mehta vs. Jayant Nemchand Shah & others reported in 1996(2) Mh.L.J. 885 , has laid down as follows : “11. There is no dispute that the decree for specific performance is an in respect of the entire building and it is not restricted only to a particular tenement in the said building, although decree contains a direction that the defendants should hand over flats Nos. 1 and 3 which were in possession of the defendants. It is now well settled that it is not necessary in a suit for specific performance, either to separately claim possession or for the Court to pass a decree for possession. 1 and 3 which were in possession of the defendants. It is now well settled that it is not necessary in a suit for specific performance, either to separately claim possession or for the Court to pass a decree for possession. A decree for specific performance of 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 indicated by section 55 of the Transfer of Property Act. Clause (f) of section 55(1) of the said Act provides that : “The seller is bound ... ... (f) to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits.” The delivery of possession is thus a necessary ingredient and part of transfer of ownership. Therefore, where a decree for specific performance of contract is silent as to the relief of delivery of possession, the executing Court is still competent to deliver possession. The Division Bench of Allahabad High Court in Pt.Balmukund vs. Veer Chand, AIR 1954 Allahabad 643, ruled that the decree for specific performance, which provides that the property should be sold to the plaintiff by the documents and the sale deed, shall be executed within a certain time, failing which the Court will have the sale deed executed by a person nominated by it, implies that the delivery of possession shall be given in accordance with the provisions of section 55(1)(f) of the Transfer of Property Act. The Calcutta High Court took a similar view in Kartick Chandra vs. Dibakar Bhattacharjee, AIR 1952 Calcutta 363, and Subodh Kumar Banerjee vs. Hirmani Dasi and ors., AIR 1955 Calcutta 267. In the first case, it was held that the Court while allowing the prayer for specific performance vests the executing Court with all powers which are required to give full effect to the decree for specific performance. This was followed in the latter case in Subodh Kumar Banerjee’s case (supra). 12. In Venkatesh vs. Parappa, (1966) 1 Mys.L.J. 799, Mysore High Court sustained the order of delivery of possession though the decree for specific performance was passed in general terms. This was followed in the latter case in Subodh Kumar Banerjee’s case (supra). 12. In Venkatesh vs. Parappa, (1966) 1 Mys.L.J. 799, Mysore High Court sustained the order of delivery of possession though the decree for specific performance was passed in general terms. All these decisions were referred to and relied on by Single Judge of Kerala High Court in Narayan Pillai vs. Ponnuswami Chettiar, AIR 1978 Kerala 236, where the learned Judge held : “The executing Court can grant delivery of possession of property even where no such relief is granted by a decree for specific performance of the contract of sale.” There is a direct decision of this Court in Lotu Bandu vs. Pundalik, 1985 Mh.L.J. 359, where, Jamdar, J. held that it is not necessary to specifically claim relief of possession in such for specific performance and the executing Court is competent to grant such relief. The learned Judge observed with reference to section 22 of the Specific Relief Act that the requirement to claim the relief under clause (a) or (b) of section 22 is qualified by the clause “in an appropriate case”. An appropriate case means a case in which the relief does not necessarily flow from the decree for specific performance of the agreement of sale. If such a relief is ancillary to and necessarily flows from a decree for specific performance, then it is not necessary to specifically seek such a relief and the bar of section 22(2) would not be attracted. The learned Judge further observed that if the defendant is in possession of the property agreed to be sold and the decree directs a specific performance of the agreement of sale, defendant is bound to execute the sale deed as per the decree and to put plaintiff in possession of the property as contemplated under sections 50 and 55(1)(f) of the Transfer of Property Act. In view of the decided cases, it is clear that most important part of such a decree is the portion where the Court directs that the contract to be specifically performed and the details which follow do not in any way limit the jurisdiction of the executing Court to take particular steps which are mentioned in the decree, but all other steps which ought to be taken for giving full effect to the decree for specific performance are not only within the competence of the Court, but the Court is bound to assist the party to that effect.” The other judgments relied upon by the learned Advocate for the petitioner are also on the same point. 9. In view of the above, the impugned order is unsustainable in law. Further the Executing Court, having considered the submissions made on behalf of the respective parties, by the order dated 24.11.1994, issued warrant of possession. In view of this, it was not open for the Executing Court to pass the impugned order, giving a gobye to the earlier order dated 24.11.1994. 10. In view of the above, the impugned order is set aside. The order passed by the Executing Court on 24.11.1994 is restored. The Executing Court is directed to proceed further with the Regular Darkhast No.15 of 1993. The writ petition is allowed with costs quantified at Rs. 10,000/-. The respondents to pay the above mentioned costs to the petitioner by depositing it before the Executing Court till 08.08.2014.