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2018 DIGILAW 2011 (RAJ)

Gopal Lal Sharma v. Bharti Verma

2018-09-29

ALOK SHARMA

body2018
JUDGMENT : ALOK SHARMA, J. 1. The plaintiff-decree holder is aggrieved of the order dt. 13.7.2017 whereby his miscellaneous application under Sec. 151 CPC in a disposed of execution application seeking possession of house No. 267/39, Pratap Nagar, Sanganer, Jaipur following execution and registration of a sale deed in respect thereof by the executing Court on 21.2.2017 pursuant to decree dt. 26.2.2016 in a suit for specific performance has been dismissed. 2. The facts of the case are that plaintiff filed a suit for specific performance founded on an agreement to sell dt. 18.2.2010 against one Smt. Bharti Verma, the defendant-in respect of house No. 267/39, Pratap Nagar, Sanganer, Jaipur. At the final stage of the said suit, a compromise came to be entered into between the plaintiff and the defendant on 26.2.2016. The terms thereof were as under: **1- ;g dh i{kdkjku~ ds e/; ,d bdjkjukek fnukad 18-02- 2010 dks fu"ikfnr gqvk ftldh ikyuk izfrokfnuh }kjk ;Fkk le; ugha dh ldh ftl dkj.k oknh }kjk izfrokfnuh ds fo:) mijksDr muokuh izdj.k ekU; U;k;ky; Jheku ds le{k izLrqr dj fn;k tks orZeku esa ekU; U;k;ky; esa cgl vfUre fu;r gS mDr izdj.k esa i{kdkjku~ ds e/; yksd vnkyr dh Hkkouk ls izsfjr gksdj fuEu jkthukek gks x;k %& d- ;g fd izfrokfnuh bdjkjukek ds tfj;s oknh ls izkIr jkf'k dh vnk;xh oknh dks vkt fnukad 26-02-2016 ls vUnj nks ekg vFkkZr fnuakd 25-04-2016 rd tfj;s cSdj pSd@MhMh vnk dj nh tkosxh ,oa Lo;a }kjk fn;s x;s edku uEcj 267@39] izrki uxj] lkaxkusj] t;iqj ds nLrkost oknh ls izkIr dj fy;s tkosxsA [k- ;g fd ;fn izfrkfnuh mDr le;ko/kh esa oknh dks lEiw.kZ jkf'k vnk djus esa vlQy jgrh gS rks izfrokfnuh vius edku uEcj 267@39] izrki uxj] lkaxkusj] t;iqj dk foØ; i= oknh ds uke iathd`r djk nsxh ,oa ;fn izfrokfnuh foØ; i= iath;d`r djkus esa vlQy jgrh gS rks oknh dks ctfj;s U;k;ky; vius gd esa edku uEcj 267@39] izrki uxj] lkaxkusj] t;iqj dk foØ; i= vius uke iathd`r djkus dk vf/kdkj gksxkA x- ;g fd [kpkZ eqdnek i{kdkju~ viuk&viuk ogu djsxsA vr% okn jkthukek }kjk fMØh Qjek;k tkos jkthukek fMØh dk ikVZ gksxkA** 3. The said compromise being presented to the Court, a judgment in terms thereof was passed on 26.2.2016 and a decree of the Court of even date followed. 4. The defendant-judgment debtor failing to honour and act in terms of the compromise decree dt. The said compromise being presented to the Court, a judgment in terms thereof was passed on 26.2.2016 and a decree of the Court of even date followed. 4. The defendant-judgment debtor failing to honour and act in terms of the compromise decree dt. 26.2.2016, the plaintiff as the decree holder moved an Execution application numbered 36/2016 before the executing. Court which in pursuance of the decree dt. 26.2.2016 had a sale deed of the decreed property (house No. 267/39, Pratap Nagar, Sanganer, Jaipur) executed and registered in his favour before the Sub-Registrar, Sanganer, Jaipur on 21.2.2017. 5. The plaintiff-decree holder then moved a miscellaneous application under Sec. 151 CPC on 17.3.2017 before the executing Court seeking possession of the decreed property in respect of which a sale deed was executed and registered before the Sub-Registrar, Sanganer, Jaipur on 21.2.2017. That has been dismissed by the executing Court on the ground that the compromise decree was limited to the execution and registration of the suit property and did not provide for its possession. 6. Aggrieved, this petition under Article 227 of the Constitution of India has been filed primarily on the ground that the said order dt. 13.7.2017 now impugned as passed by the executing Court entails a failure of the Court to exercise its jurisdiction and is patently unjust and capricious overlooks as it does the settled position of law that in a suit for specific performance even if a decree of possession is not sought and passed on such a suit being decreed, the possession of the decreed property in favour of decree holder is necessarily implied. 7. Mr. Shashi Shekhar Gaur with Mr. N.N. Sharma appearing for the plaintiff-decree holder in support of the ground aforesaid agitated, relied upon the judgment of the Madras High Court in the case reported in AIR 2012 Madras 105 titled Krishnamurthy Gounder vs. Venkatakrishnan & Ors., where the Court held as under:- "In the judgment of this Court reported in 2007 (3) CTC 529 (S. Sampoornam vs. P.V. Kuppuswamy) also the same principles are reiterated and it was held that even in the absence of any prayer for possession, once a suit for specific performance is decreed the Court has got every power to order delivery of possession. Further, according to me, the Court has got power to grant the relief of possession even in the absence of any such prayer as per the proviso to Section 22(2) of the Specific Relief Act the Court shall at any stage of the proceedings allow the plaintiff to amend the plaint to include the relief. In my opinion/a discretion is vested on the Court to allow the amendment and even in the absence of any prayer and even in the absence of any application for amendment (emphasis mine), the Court can grant the relief of recovery of possession once the suit is decreed for specific performance. These aspects were not properly appreciated by the Court below and the Court below approached the application in a pedantic manner and dismissed the application without appreciating the judgments of the Hon'ble Supreme Court and of our High Court." 8. Counsel have also relied upon the judgment of Jharkhand High Court reported in AIR 2010 Jharkhand 151 titled Smt. Sunita Devi vs. Dinbandu Shah & Ors., where it was held that: "12. In a decree allowing specific performance of contract, the judgment debtor is bound not only to execute the sale deed but also to deliver the suit property in possession of the decree holder in consonance with the provisions of Section 55(1)(f) of the Transfer of Property Act even if delivery of possession was not one of the relief's specifically sought in the plaint. Delivery of possession is implicit in an agreement for sale and also in a decree for specific performance of contract and hence after execution of the deed of transfer in terms of the decree, possession has to be delivered in accordance thereof. This would only ensure substantial justice to the decree holder. 13. In the present case, since the execution of the sale deed was made in favour of the plaintiff by the process of the Court itself, the onus upon the Court is further extended to ensure delivery of possession through the execution proceedings for the purpose of satisfying the decree. Thus, even if there was no prayer for delivery of possession in terms of Section 22 of the Act, the decree holder is entitled to be put in possession of the demised property. Thus, even if there was no prayer for delivery of possession in terms of Section 22 of the Act, the decree holder is entitled to be put in possession of the demised property. (emphasis mine) This view is supported by the ratio-decided in the judgment of the Patna High Court in the case of Aibunnisha vs. Masrur Alam 2005 (2) PLJR 205 : AIR 2005 Pat 133 , relying upon the previous judgment in the case of Kailash Rai vs. Hare Ram Dubey 2003 (4) PLJR 372 and also in the case of Bhanu Pratap Sah v. Bhagmuni Devi and others 1992 (1) PLJR 118 ." 9. Further reliance has been placed on the judgment of this Court reported in AIR 1987 Rajasthan 117 titled Hemchand vs. Karilal, where it was held that: "So far as the question of amendment of the plaint in the peculiar circumstances of this case is concerned, it will only be a futile exercise. As already pointed above the plaintiff had claimed for possession and when the decree for specific performance of the contract has already been passed the mere fact that it specifically did not grant the relief for possession the plaintiff should again amend the plaint. There is no occasion for the plaintiff to amend the plaint when the relief had already been asked for and has impliedly been granted as stated above. I have already pointed above that the explanation 5 to S. 11 would not apply in such a case as the Hon'ble Supreme Court has already clearly indicated in the aforesaid authority, in such a suit the decree for specific performance clearly implies a decree for possession also that is the relief of possession is inherent in the relief of specific performance of the contract of the sale." 10. None has appeared for the defendant-judgment debtor despite service. 11. Admittedly the plaintiff's suit for specific performance of the agreement dt. 18.2.2010 was decreed by consent on the basis of compromise dt. 26.2.2016. The judgment debtor having failed to avail the first option under the consent decree dt. 26.2.2016 to have remitted to the decree holder the sums of money received under the agreement to sell dt. 18.2.2010, he was bound to consequently execute the sale deed pursuant to the agreement to sell dt. 26.2.2016. The judgment debtor having failed to avail the first option under the consent decree dt. 26.2.2016 to have remitted to the decree holder the sums of money received under the agreement to sell dt. 18.2.2010, he was bound to consequently execute the sale deed pursuant to the agreement to sell dt. 18.2.2010 in respect of house No. 267/39, Pratap Nagar, Sanganer, Jaipur and have it registered in favour of the decree holder. 12. The judgment debtor not having discharged her obligation under the decree dt. 26.2.2016, the executing Court in her stead did so and a sale deed came to be executed and registered before the Sub-Registrar, Sanganer, Jaipur on 21.2.2017 in favour of the decree holder. As the execution of the sale deed was not accompanied by possession of the property therein, a miscellaneous application under Sec. 151 CPC was moved by the decree holder before the executing Court praying for being put in possession of the property in issue, it being an implied term of the compromise decree for specific performance. 13. The executing Court however failed to rely upon the judgments relied upon by the decree holder which make it pellucid that a decree for specific performance entails by implication a decree of possession. Instead it has overlooked the judgment of the Madras High Court to which reference has been made in the impugned order on the specious ground that the decree in issue for specific performance was passed on a compromise which Compromise did not include the decree holder being put in possession in the event of the suit being decreed based thereon. 14. I am of the considered view that the mere factum of the decree for specific performance being passed on a compromise which did not specifically provide for possession was not of any event in view of the principle of law enunciated in the three judgments relied upon by counsel for the plaintiff-decree holder. The decree for specific performance and the resultant execution and registration of the sale deed at the instance of the executing Court in favour of plaintiff-decree holder entailed an implied right of the plaintiff-decree holder to be put in possession of the property so conveyed. That right has been denied by the impugned order of the executing Court failing to exercise its jurisdiction. Resultantly, the impugned order dt. 13.7.2017 is set-aside. That right has been denied by the impugned order of the executing Court failing to exercise its jurisdiction. Resultantly, the impugned order dt. 13.7.2017 is set-aside. The application under Sec. 151 CPC filed at the instance of the plaintiff-decree holder for possession of the suit property in respect of which a sale deed came to be executed and registered in his favour by the executing Court following the judgment and decree dt. 26.2.2016 is allowed. The executing Court is directed to issue a warrant of possession of House No. 267/39, Pratap Nagar, Sanganer, Jaipur in favour of the plaintiff-decree holder. The petition stands disposed of accordingly.