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2015 DIGILAW 1792 (ALL)

Ravindra Singh Solanki v. Ikbal Singh

2015-07-07

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. By means of the present writ petition, the petitioner is challenging the order passed by the Executing Court in allowing the Amendment Application filed by the decree-holder. 2. Admitted facts of the case are that a decree for specific performance of agreement to sell has been passed by the trial court on 28.07.1995 which has attained finality. An Execution Application No. 33 of 1995 was filed by the decree-holder. During the pendency of the Execution Application, an amendment application was filed on 06.05.2005 with the prayer for delivery of possession of the land in question, which is the subject matter of agreement to sell and the decree of specific performance. The Executing Court rejected the application on the plea taken by the judgment debtor that while passing the decree of specific performance, the trial court did not grant the relief of possession to the decree-holder. 3. The order of the Executing Court dated 14.09.2012, was challenged in revision which was registered as Civil Revision No. 154 of 2012. The Revisional Court, after consideration of the legal position with regard to the decree of specific performance has observed that once the Court passes a decree of specific performance of an agreement and pursuant thereto, in case, the decree-holder pays the balance sale consideration to the judgment debtor, the decree for specific performance is to be executed and the question of delivery of possession of the property under sale would necessarily involve. The amendment application was, therefore, wrongly rejected by the Executing Court. 4. Challenging the order of the Revisional Court dated 27.03.2015, submission of learned counsel for the petitioner Shri Pankaj Agrawal is that the decree dated 28.07.1995 passed in Original Suit No. 654 of 1992 did not include the decree of possession. The Revisional Court in execution proceedings has erred in allowing the amendment application. The decree holder in the plaint itself has taken a stand that in part performance of the agreement to sell, possession of the property which is the subject matter of the agreement has been delivered to him and he is in possession of the same prior to filing of the suit. The plaintiff has obtained an ex parte decree of specific performance by placing incorrect facts before the trial court. The plaintiff has obtained an ex parte decree of specific performance by placing incorrect facts before the trial court. This apart the Executing Court can not go behind the decree and allow the amendment application for the relief of the possession which was not granted by the trial court. 5. Having heard learned counsel for the parties and perused the record this Court finds that there is no dispute to the fact that the decree of specific performance has attained finality. 6. Section 28 (3) and 28 (4) of Specific Relief Act provide as under: Section 28: Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.- (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. 7. A conjoint reading of Section 28 (3) and 28 (4) of the Act clearly shows that no separate suit for any relief which is necessarily the incidental or ancillary relief of decree of a specific performance can be filed by the decree-holder/vendor/purchaser. In case, the vendor pays the purchase money or the money which was ordered to be paid under the decree of specific performance, the vendee/seller/judgment deter has to execute the sale deed. The execution of sale deed necessarily involves the relief of delivery of possession of the property/land which is subject matter of the sale deed. On these legal principles the Revisional Court has allowed the amendment application. 8. There is no infirmity in the order dated 27.03.2015 passed by the Revisional Court which has only corrected the manifest error of law apparent on the face of the record. 9. On these legal principles the Revisional Court has allowed the amendment application. 8. There is no infirmity in the order dated 27.03.2015 passed by the Revisional Court which has only corrected the manifest error of law apparent on the face of the record. 9. This Court further finds that the execution is pending since the year 1992. It is, therefore, provided that the execution case shall be proceeded as expeditiously as possible and be brought to its logical ends at the earliest. 10. The writ petition is devoid of merits and hence dismissed.