Gujarat High Court
Roshankumar Rameshbhai Patel vs Kantaben Ramanbhai Dalwadi on 10 October, 2025
NEUTRAL CITATION
C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16867 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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ROSHANKUMAR RAMESHBHAI PATEL
Versus
KANTABEN RAMANBHAI DALWADI & ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,3
UNSERVED EXPIRED (N) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/10/2025
ORAL JUDGMENT
1. Though served, none appeared for respondent Nos.1 and 3.
Respondent No. 2 reported died, but learned Advocate Mr. Jamshed Kavina for the petitioner states that there is no need to bring on record his legal heirs, inasmuch as respondent No. 3 is the legal heir of respondent No. 2.
2. Heard learned Advocate Mr. Jamshed Kavina appeared for the Page 1 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined petitioner at length.
3. This Court vide its order dated 16.10.2023, passed the following order:
"Notice for final hearing returnable on 12.12.2023.
In the meantime, there shall be an ad-interim relief in terms of para 17(B) of the present application till then.
Direct service is permitted."
4. It is reported to this Court that despite granting ad-interim relief in terms of paragraph 17(B), till date, the Trial Court has not issued possession warrant for suit property in question in favour of the petitioner.
5. Be that as it may, the present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or a writ in the nature of certiorari and/or any other appropriate writ, order or directions quashing and setting aside the order dated 19.8.2023 passed by learned Additional Senior Civil Judge, Vadodara below applications Exh.29 and 38 in Special Execution Application No.29 of 2019 (Annexure I to the present petition) and YOUR LORDSHIPS may be pleased to allow applications below Exh.29 and 38 preferred by the petitioner in Special Execution Application No.29 of 2019, in the interest of justice;Page 2 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025
NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined (B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the order dated 19.8.2023 passed by learned Additional Senior Civil Judge, Vadodara below applications Exh.29 and 38 in Special Execution Application No.29 of 2019 (Annexure I to the present petition) and YOUR LORDSHIPS may be pleased to direct for the learned Trial Court issuance of Possession Warrant for the suit property in question in favour of the petitioner forthwith;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
6. SUBMISSIONS OF PETITIONER:
6.1. Learned Advocate Mr. Kavina would state that the petitioner herein having filed Special Civil Suit No. 857 of 2023 against respondent No. 1 herein, sought a specific performance of agreement to sell executed between the parties. It is submitted that after recording of evidence and hearing the parties, the Trial Court vide its judgment and decree dated 04.12.2018, allowed the suit, thereby granted decree of specific performance of an agreement to sell in favour of petitioner-plaintiff.
6.2. Learned Advocate Mr. Kavina would further state that as per the judgment and decree, the original defendant of suit is directed to execute sale deed in favour of the petitioner.Page 3 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025
NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined 6.3. Learned Advocate Mr. Kavina would further state that as respondent No. 1-defendant, failed to execute sale deed, through appointment of Court Commissioner, sale deed came to be executed in favour of the petitioner. 6.4. Learned Advocate Mr. Kavina would further state that despite the execution of the sale deed in relation to the said property in favour of the petitioner, possession of the suit property was not delivered by the judgment debtor. So, the petitioner filed impugned applications below Exhibit 29 and Exhibit 38, requesting the Executing Court to issue possession warrant, which was erroneously rejected by the Executing Court on 19th August 2023.
6.5. Learned Advocate Mr. Kavina would humbly submit that the Executing Court has committed serious error of law and arrived at erroneous observation that in the absence of any specific decree passed by the Trial Court, thereby, granting relief of possession in favour of the petitioner, the Executing Court cannot issue possession warrant against the judgment debtor. It is submitted that when in a case of specific performance of an agreement to sell, decree passed in favour of Page 4 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined the plaintiff, it would be incumbent upon the defendant to hand over possession along with the execution of the sale deed of the property.
6.6. Learned Advocate Mr. Kavina would submit that as such, the issue germane in the matter is squarely covered by the decision of the Honourable Supreme Court of India and the prayers made in the impugned applications, so also in the present writ application may be allowed.
6.7. To buttress his argument, he would rely upon the following three decisions:
(i) Birma Devi V/s. Subhash reported in 2024 SCC OnLine SC 3676;
(ii) Sulthan Said Ibrahim V/s. Prakasan reported in 2025 SSC OnLine SC 1218;
(iii) Rohit Kochhar V/s. Vipul Infrastructure Development Ltd.
Reported in 2024 SCC OnLine SC 3584.
6.8. Making the above submissions, learned Advocate Mr. Kavina would request this Court to allow the present writ application.
7. No other and further submissions are made. Page 5 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025
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8. Having heard learned Advocate Mr. Kavina and after going through the record of the case, including the impugned order, the following facts are germane in the matter:
(i) The petitioner herein appears to be the original plaintiff of Special Civil Suit No. 856 of 2011 filed against respondent No. 1 herein, which came to be decreed by the Trial Court on 4th December 2018 in his favour.
(ii) The suit filed seeking specific performance of an agreement to sell executed between the parties to the suit in relation to the immovable property - suit property.
(iii) The suit decreed in favour of the plaintiff by granting specific performance of an agreement to sell, wherein, there is no specific directions/reliefs as regards handing over of the possession of the suit property to the plaintiff passed.
(iv) It remains undisputed on record that after passing of the decree, through the help of Court Commissioner, the petitioner got registered sale deed in his favour in relation to the said property.Page 6 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025
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(v) When the petitioner being the decree holder, complained about not handing over the possession of the suit property to him, having so filed impugned applications below Exhibits 29 and 38, whereby, requested the Executing Court to issue possession warrant of the suit property, such request rejected by the Executing Court.
9. As such, the issue germane in the present writ application is squarely covered by the cited decisions, which I would like to refer as under:
9.1. In the case of Birma Devi (supra), considering the point which in fact germane in the present case, it held thus:
"6. However, in the execution proceedings, the executing court took the view that although there is a decree for specific performance yet the decree does not say anything as regards putting the plaintiffs in possession of the suit property.
7. In such circumstances, the executing court declined to handover the possession of the suit property to the respondents - herein.
12. The short question that falls for our consideration is whether the relief of possession may be granted by the executing Page 7 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined court in a case where the suit has been decreed for specific performance simpliciter and no express relief for the transfer of possession of the suit property has been granted.
13. The position of law on the issue has been settled by this Court in the case of Babu Lal v. Hazari Lal Kishori Lal, (1982) 1 SCC 525 wherein the Court while elaborating on Section 22 of the Specific Relief Act, 1963 laid down the law for the following two situations that may arise:
a. First, in cases where the possession of the suit property is exclusively with the contracting party, then a decree for specific performance simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree holder. This, the Court held, was in consonance with Section 55(1) of the Transfer of Property Act, 1882, which binds the seller, on being so required, to transfer to the buyer or such other person as he directs, such possession of the property as its nature admits.
b. Secondly, in cases where the relief of possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, for instance, in cases where the property agreed to be conveyed is jointly held by the defendant with other persons, or cases where after the contract the property has passed in possession of a third person, then the plaintiff, in order to obtain complete and effective relief, must claim the relief of transfer of possession over the property defendant along with the relief of partition, etc., if required.
15. The aforesaid position of law has been recently reiterated by us in a recent order passed in the case of Rohit Kochhar v. Vipul Page 8 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined Infrastructure Developers Ltd., 2024 INSC 920 wherein we have observed thus:
"23. This Court in Babu Lal (supra), upon a combined reading of Sections 22 and 28(3) of the Specific Relief Act respectively and Section 55 of the Transfer of Property Act, observed that the it was only "in an appropriate case"
that the plaintiff was required to separately seek the relief of possession, partition, or separate possession, as the case may be, along with the relief of specific performance. The Court observed that in other cases, say for example a case where the exclusive possession of the suit property is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. This, the Court observed, was the mandate flowing from Section 55 of the Transfer of Property Act."
(emphasis supplied) 9.2. Likewise, in the case of Sulthan Said Ibrahim (supra), the Hon'ble Apex Court held thus:
"64. Before we part with the matter, we deem it appropriate to briefly address the contention of the appellant that in the absence of decree granting possession to the original plaintiff, the decree gets satisfied with the execution of the sale deed and the original plaintiff is not entitled to seek possession over the suit property. The position of law is settled on this aspect and has been reiterated by us in our recent decision in Rohit Kochhar v. Vipul Infrastructure Developers Ltd. reported in 2024 Page 9 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined SCC OnLine SC 3584. In the said decision, relying on the decision of this Court in Babu Lal v. Hazari Lal Kishori Lal reported in (1982) 3 SCR 94, it was observed thus:
"23. This Court in Babu Lal (supra), upon a combined reading of Sections 22 and 28(3) of the Specific Relief Act respectively and Section 55 of the Transfer of Property Act, observed that the it was only "in an appropriate case"
that the plaintiff was required to separately seek the relief of possession, partition, or separate possession, as the case may be, along with the relief of specific performance. The Court observed that in other cases, say for example a case where the exclusive possession of the suit property is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. This, the Court observed, was the mandate flowing from Section 55 of the Transfer of Property Act. [...]"
(Emphasis supplied)
65. Thus, as in the present case, both the courts below have arrived at the conclusion that the exclusive possession of the suit property could be said to be with the original defendant when the suit was decreed, the relief of transfer of possession is implicit in the decree for specific performance directing the original defendant to execute a sale deed in the favour of the original plaintiff. For the same reason, the decision of this Court in Birma Devi (supra) is of no avail to the appellant."
(emphasis supplied) Page 10 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined 9.3. Lastly, in the case of Rohit Kochhar (supra), the Hon'ble Apex Court observed and held thus:
"32. In the present case, the alleged contract for the sale executed between the parties through exchange of communications dated 16.01.2004 and 20.01.2004 respectively contains the stipulation that 10% of the total sale consideration has to be paid immediately by the plaintiff upon booking, 85% of the sale consideration has to be paid by 28.02.2004 and the balance 5% of the sale consideration has to be paid at the time of notice for possession of the premises. Further, there is a stipulation that the possession of the suit property has to be handed over by the defendants to the plaintiff upon payment of the balance 5% of the total sale consideration. Further, section 55(1)(f) of the Transfer of Property Act also stipulates that the seller of an immovable property is required to handover the possession of the property to the buyer pursuant to the execution of the sale deed. It was also held in Babu Lal (supra) that in view of the interplay between Sections 22 and 28 of the Specific Relief Act respectively and Section 55 of the Transfer of Property Act, the handing over of the possession of the immovable property in respect of which a decree of specific Page 11 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined performance has been granted is only incidental.
33. Thus, it is clear from the terms of the alleged contract between the parties that the transfer of possession of the suit property is implicit in the said contract and absence of a specific prayer seeking transfer of possession would not have any bearing on the character of the suit, which is one covered by Section 16(d) of the CPC.
34. If we were to hold otherwise, then it would give rise to a situation where a plaintiff would be allowed to file a suit for specific performance simplicter and having obtained a decree therein, the plaintiff would pray for the transfer of the execution proceedings to the court within whose territorial jurisdiction the suit property lies and thereafter seek amendment of the plaint to include a prayer for transfer of possession, which has been expressly held to be permissible in Babu Lal (supra). An interpretation which gives rise to the possibility of such misuse of law cannot be allowed."
(emphasis supplied)
10. Thus, in view of the aforesaid position of law, if it so applied to the facts of the present case, as noticed hereinabove, the Page 12 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined impugned order passed by the Executing Court cannot sustain in eye of law, inasmuch as, unnoticingly, the Executing Court went completely in the wrong direction, whereby, rejected prayer of issuance of possession warrant made by the decree holder, who holds the decree of specific performance in his favour. As per said law, when such relief i.e. to get possession of suit property prayed by the decree holder in the execution, it requires to be granted by the Executing Court.
11. When this Court arrives at the aforesaid finding thereby, found that the Executing Court has committed jurisdictional error by not issuing possession warrant as prayed in the impugned applications filed by the petitioner, it is required to exercise its power under Article 227 of the Constitution of India, to set naught the impugned order. [See - Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)].
12. Furthermore, it is also very surprising to note, having so informed by learned Advocate Mr. Kavina that despite there is an order passed by this Court on 16/10/2023 as observed Page 13 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined hereinabove, thereby, granted relief of issuance of possession warrant, till date, the Executing Court has not acted upon such direction issued by this Court. This Court could have sought an explanation from Executing Court concerned about not obeying such order/direction issued by this Court vide its said order. Nonetheless, this Court, at this stage, would not like to further delay the execution of the decree and would not like to deprive the petitioner to get its fruits.
13. At the same time, as a word of caution, it is hereby directed to the Executing Court that in future, it may take every directions issued by this Court seriously and acted upon it as an obedient soldier. In any case, the Executing Court now requires to implement this final judgement/order in its true letter and spirit.
CONCLUSION
14. In view of the foregoing observations, discussions and reasons, I am of the view that the impugned order dated 19/08/2023 passed by the Additional Senior Civil Judge, Vadodara below Exhibits 29 and 38 in Special Execution Application No. 29 of 2019 is requires to be quashed and set aside which hereby Page 14 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025 NEUTRAL CITATION C/SCA/16867/2023 JUDGMENT DATED: 10/10/2025 undefined quashed and set aside. Consequently, impugned applications filed below Exhibits 29 and 38 stand allowed.
15. The Executing Court is hereby directed to issue possession warrant as prayed for in the aforesaid impugned applications forthwith. If need be and necessary police protection may be given to the bailiff/representative of the Court who is going to be appointed by the Executing Court to hand over actual and physical possession of the suit property to decree holder - petitioner. Necessary order in this regards shall be passed by the Executing Court.
16. In view of the foregoing conclusion, the present application is hereby allowed. No order as to costs.
(MAULIK J.SHELAT,J) NILESH Page 15 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 15 2025 Downloaded on : Wed Oct 15 22:49:03 IST 2025