JUDGMENT : 1. The aforesaid Writ Petitions are being disposed of by this common order, as the issue involved in both the cases is similar. WP227 No. 828 of 2022 2. This Petition has been preferred challenging the order dated 21.11.2022 passed by the Executing Court i.e. 6th Additional District Judge, Durg, in Execution Case No.43/2021 (Sunil Kumar Jain Vs. M/s Guru Engineering Works) whereby the objection raised by the petitioner/defendant for execution of the decree was rejected and decree holder/respondent/plaintiff was allowed to amend the execution for relief of possession in the execution application. 3. Facts of the case are that the respondent/plaintiff has filed a civil suit for specific performance of agreement to sell dated 21st October, 2010 and the said suit was decreed in favour of the plaintiff in Civil Suit No.46- A/2014 by 7th Additional District Judge, Durg vide judgment dated 26th October, 2016, which was affirmed in FA No.378/2016 vide judgment dated 30th August, 2019. The petitioner/judgment debtor has also challenged the judgment rendered in First Appeal before the Hon’ble Supreme Court vide SLP (Civil) Diary No(s).22330/2020 and the Hon’ble Supreme Court vide order dated 13th January, 2021 dismissed the SLP. Thereafter when the respondent/plaintiff/decree holder proceeded for execution, the petitioner/defendant has raised an objection that in the impugned decree, there is no direction for handing over the possession of the suit property and the respondent/plaintiff, in such circumstances, has also moved an application for amendment in 3 execution to add the relief which has been allowed by the impugned order. WP227 No. 831 of 2022 4. Facts in the present case are almost similar. In the present case, the respondent/plaintiff/decree holder has filed an application under Order 6 Rule 17 read with Section 151 of the CPC claiming that in the execution application, relief of possession be added. Learned 6th Additional District Judge, Durg vide impugned order has allowed the application filed under Order 6 Rule 17 of the CPC against which the present Writ Petition has been filed. 5. Shri Sharma, learned counsel for the petitioner would submit that it is well settled legal proposition that the Executing Court cannot go behind the decree and further, if any relief is sought in the plaint/decree and has not been granted in the final judgment and decree, then the Executing Court cannot extend the benefit, which has not been granted under the decree. Learned counsel would further submit that during the pendency of the suit, the nature of the suit property has been changed and on the vacant land of the suit property, a go-down has been constructed by the defendant and no relief has been claimed for removal of the construction. Learned counsel would place reliance on the judgment of the Hon’ble Supreme Court in the matter of Adcon Electronics Pvt. Ltd. Vs. Daulat and Another, (2001) 7 SCC 698 and would refer paragraphs 16 & 17 which read thus:- “16. In a suit for specific performance of contract for sale of immovable property containing a stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs: “22. Power to grant relief for possession, partition, refund of earnest money, etc.—(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of subsection (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.” 17. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to 5 which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.” 6. Learned counsel for the petitioner would further place reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Excel Dealcomm Private Limited Vs. Asset Reconstruction Company (India) Limited and Others, (2015) 8 SCC 219 and would draw attention of the Court towards para-15, which reads thus:- “15. On the question of suit for specific performance of an agreement to sell being a suit for land, this Court has laid down a clear principle in Adcon Electronics (P) Ltd. v. Daulat, that a suit for specific performance simpliciter without a prayer for delivery of possession is not a suit for land as Section 22 of the Specific Relief Act, 1963 categorically bars any court to grant such relief of possession in a suit for specific performance unless specifically sought. In view of this judgment, in the present case, the only question for our determination in the plaint is whether a prayer for delivery of possession is sought or not? The prayer sought is issuance of sale certificate which is provided in Appendix V to the Rules under the SARFAESI Act. The sale certificate reads as follows: “Whereas the undersigned being the authorised officer of the …………………………. (name of the institution) under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and in exercise of the powers conferred under Section 13 read with Rule 12 of the Security Interest (Enforcement) Rules, 2002 sold on behalf of the ……………………… (name of the secured creditor/institution) in favour of the ………………………. (purchaser), the immovable property shown in the Schedule below secured in favour of the ………………………. (purchaser), the immovable property shown in the Schedule below secured in favour of the ………………………. (name of the secured creditor) by …………………… (the names of the borrowers) towards the financial facility ……………………….. (description) offered by ……………………….. (secured creditor). The undersigned acknowledge the receipt of the sale price in full and handed over the delivery and possession of the scheduled property. The sale of the scheduled property was made free from all encumbrances known to the secured creditor listed below on deposit of the money demanded by the undersigned.” 7. Further, reliance is placed in the matter of Firm Rajasthan Udyog and Others Vs. Hindustan Engineering and Industries Limited, (2020) 6 SCC 660 , in which it has been observed that the Executing Court cannot go behind the decree, as the decree did not clothe the decree holder to pray for execution of the decree by way of removal of trees, the same could not have been directed by the learned Executing Court in the name of construing the spirit of decree under execution. 8. Lastly, learned counsel for the petitioner submits that the impugned order is not sustainable being perverse and the same deserves to be quashed and the Writ Petitions may be allowed. 9. On the other hand, Shri Paranjpe, learned counsel appearing on behalf of the respondent/decree holder would submit that there is constant tactics to delay and obstruct the execution of the decree and to curb the said menace, recently, the Hon’ble Supreme Court in the matter of Rahul S. Shah Vs. Jinendra Kumar Gandhi & Others {Civil Appeal No.1659-1660 of 2021, decided on 22nd April, 2021} has issued various directions to all the Courts with an endeavour to expedite the process of execution. Learned counsel for the respondent would further submit that the issue involved in the present case is no longer res integra, as the similar issue came for consideration before the Hon’ble Supreme Court in the matter of Manickam @ Thandapani & Another Vs. Learned counsel for the respondent would further submit that the issue involved in the present case is no longer res integra, as the similar issue came for consideration before the Hon’ble Supreme Court in the matter of Manickam @ Thandapani & Another Vs. Vasantha, 2022 LiveLaw (SC) 395 : Civil Appeal No.2726 of 2022, decided on 5th April, 2022, wherein dealing with the issue concerning the relief of possession having not been claimed in the suit for specific performance, the Hon’ble Supreme Court has categorically held that under Section 22 (2) of the Specific Relief Act, 1963 (for short ‘the Act, 1963’) the relief of possession is ancillary to the decree for specific performance and need not be specifically claimed. It was also clarified that even if such relief has not been sought for, the words in Section 22 (2) of the Act, 1963 “at any stage of the proceeding” would include proceeding in suit or in appeal and also in execution. The aforesaid provision is directory in nature. Further, even during the pendency of the suit, if the nature of the property is changed, in that event also, the judgment debtor has no legally equitable right in his favour during lis pendens. Therefore, the decree holder is entitled to actual physical possession of the suit property. 10. Learned counsel for the respondent would draw attention of the Court to the impugned judgment of the trial Court to submit that issue No.5 has been framed about removal of construction on the suit property and it was held by the trial Court that the plaintiff/decree holder is entitled for removal of construction of the suit property and as such, the said issue was decided in affirmative, and the said finding has attained finality, however, due to one or the other reason, the same could not be made part of the decree. 11. Learned counsel for the respondent has also placed reliance in the matter of Sitaram Pal Vs. Ram Prasad and Others, 2010 (2) MPLJ 191 , wherein also it has been categorically held that even if prayer for possession has not been specifically made, still such relief is implicit and the Court has jurisdiction to deliver possession even without prayer for possession. Similarly, in the matter of Mohd. Yakub Vs. Ram Prasad and Others, 2010 (2) MPLJ 191 , wherein also it has been categorically held that even if prayer for possession has not been specifically made, still such relief is implicit and the Court has jurisdiction to deliver possession even without prayer for possession. Similarly, in the matter of Mohd. Yakub Vs. Abdul Rauf, 2002 (1) MPLJ 475 , while allowing the revision, the Executing Court was directed to permit the decree holder to amend the plaint in the suit to incorporate the relief for delivery of possession. So, learned counsel for the respondent submits that the impugned order is just and proper and the same does not call for any interference by this Court. 12. Heard learned counsel for the parties at length and perused the documents annexed with the Writ Petitions with utmost circumspection. 13. The law concerning Section 22 (2) of the Act, 1963 has been explained in explicit terms in the matter of Manickam @ Thandapani (Supra) and the Hon’ble Supreme Court has categorically held that the relief of possession is ancillary and inherent to the decree for specific performance. Paragraphs 24, 25, 26, 29, 30 & 31 of the said judgment are relevant which read thus:- “24. The learned Single Bench in the impugned judgment herein has not taken into consideration the judgment of the Madras High Court in Krishnamurthy Gounder v. Venkatakrishnan & Ors.. The said judgment arose on the fact that the plaintiff filed the suit for Specific Performance of an Agreement of Sale and also for recovery of possession but the decree for possession was not granted. The Court held as under: “6. In the Judgment of this Court reported in S. Sampoornam v. P.V. Kuppuswamy, 2007 (3) CTC 529 , 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. 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, 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.” 25. A perusal of the aforesaid judgments would show that relief of possession is ancillary to the decree for specific performance and need not be specifically claimed. That was the position even under the Specific Relief Act, 1877. Section 22 of the Act was introduced in pursuance of the recommendation of the Law Commission to avoid multiplicity of proceedings and to cut down the delay. Therefore, though the preponderance of judicial opinions under the Specific Relief Act, 1877 was in favour of the fact that relief of possession is ancillary to the decree for specific performance, it was further clarified by introducing Section 22 of the Act. 26. The matter can be examined from another angle as well. Section 22(2) of the Act, though is worded in negative language, “no relief under clause (a) or clause (b) of subsection (1) shall be granted by the court unless it has been specifically claimed”, but the proviso takes out the mandatory 10 nature from the substantive provision of subsection (2) when the plaintiff is allowed to amend the plaint on such terms as may be just for including the plaint for such relief “at any stage of the proceeding”. “At any stage of the proceeding” would include the proceeding in suit or in appeal and also in execution. “At any stage of the proceeding” would include the proceeding in suit or in appeal and also in execution. The proviso to sub-section (2) of Section 22 of the Act contemplates that the Court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including a claim for such relief. The said proviso makes the provision directory as no penal consequences follow under sub-section (2) of Section 22. Therefore, sub-section (2) of Section 22 is a rule of prudence to ask for possession “in an appropriate case”. The appropriate case would not include a suit for specific performance simpliciter but may include a suit for partition or a suit when the decree is to be executed against a transferee. Subsection (2) cannot be said to be a mandatory provision as the power to claim relief at any stage of the proceeding makes sub-section (2) directory. Subsection (2) is a matter of procedure to avoid multiplicity of proceedings. The procedural laws are handmaid of justice and cannot defeat the substantive rights. Reference may be made to M/s. Ganesh Trading Co. v. Moji Ram wherein it was held as under: “2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take. 29. To examine whether a provision is directory or mandatory, one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. Keeping in view the scheme of the statute, we find that Section 22(2) of the Act is only directory and thus, the decree-holder cannot be non-suited for the reason that such relief was not granted in the decree for specific relief. 30. The defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. 30. The defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression “at any stage of proceeding” is wide enough to allow the plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. This Court in Babu Lal has explained the circumstances where relief of possession may be necessary such as in a suit for partition or in a case of separate possession where the property conveyed is a joint property. In the suit for specific performance, the possession is inherent in such suit, therefore, we find that the decree-holders are in fact entitled to possession in pursuance of the sale deed executed in their favor. 31. The judgment debtor in the written statement has admitted that the property is a vacant land and that she has sold other portion in favor of one Lakshmipathy. The stand of the judgment debtor now that the respondent is in possession of 750 sq. feet would not defeat the right of possession of 2400 sq. feet of an area which she has agreed to sell to the plaintiffs in respect of which decree was passed. All sales affected, and the construction, if any, raised are subject to lis pendens and no legal or equitable rights arise in favour of the purchasers during the pendency of the proceedings. Therefore, the decree-holders are entitled to actual physical possession of 2400 sq. feet of land which was agreed to be sold to the appellants.” 14.Taking into consideration the aforesaid principles, this Court holds that relief of possession is ancillary to the decree for specific performance and need not be specifically claimed and even if prayer for possession is not specifically made, still the said relief is implicit and the Court has jurisdiction to deliver possession even without praying for possession, and Section 22(2) of the Act, 1963 is only directory and thus, the decree-holder cannot be non-suited for the reason that such relief was 12 not granted in the decree for specific relief. 15. For the foregoing, this Court is of the opinion that the impugned order is just and proper, which does not call for any interference by this Court under Article 227 of the Constitution of India. 16. 15. For the foregoing, this Court is of the opinion that the impugned order is just and proper, which does not call for any interference by this Court under Article 227 of the Constitution of India. 16. Resultantly, both the Writ Petitions being devoid of any substance deserve to be and are hereby dismissed.