Manoj And 2 Others vs Mohan Kumar And 5 Others
2014 Latest Caselaw 3256 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 26
 
Case :- WRIT - C No. - 34672 of 2014
 
Petitioner :- Manoj And 2 Others
 
Respondent :- Mohan Kumar And 5 Others
 
Counsel for Petitioner :- M.D.Mishra
 
Counsel for Respondent :- Arvind Srivastava,Pushkar Srivastava
 

 
Hon'ble Abhinava Upadhya,J.

Heard Shri M.D. Mishra, learned counsel for the petitioners and Shri Arvind Srivastava, learned counsel for the respondents.

By means of this writ petition the petitioners have made the following prayer : 

"a) to issue writ of certiorari quashing the entire proceeding in execution No. 1/2002 pursuant to the exparte decree dated 21.8.2000 passed in Civil Suit No. 20/95 (annex. 4 to the writ petition);

b) to issue a writ of Mandamus directing the District Judge, Jhansi to decide the application of the petitioners for interim relief within time stipulated by the Hon'ble court;

c) to issue any writ order or direction as this Hon'ble court may deem fit and proper;

d) to call for the record and award the cost of the writ petition."

An agreement to sale was executed on 2.12.1991 between Bhagwan Das - respondent no. 6 and respondents no. 1 to 5. When Bhagwan Das failed to perform his part of the agreement in executing the sale-deed, a Suit No. 20 of 1995 was instituted for specific performance. The said suit was contested and was ultimately decreed on 21.8.2000. The respondents then filed an Execution Case No. 1 of 2002 and by intervention of court, a sale-deed was executed on 1.10.2013 and was registered on 19.10.2013. The executing court after execution of the sale-deed also went on to retrieve possession from the petitioners, which order is subject matter of challenge before this Court.

Shri M.D. Mishra, learned counsel appearing for the petitioners submits that in view of Section 22(1)(a) of Specific Relief Act there was no specific pleading for delivery of possession in a suit for specific performance, therefore, the executing court could not have gone on to deliver possession to the plaintiff. According to him decree was satisfied the moment, sale-deed was executed and was registered and, therefore, delivery of possession, which was not specifically asked for in the plaint, could not have been directed to be delivered to the respondents.

Shri Arvind Srivastava, learned counsel appearing for the respondents vehemently contested the aforesaid contention stating that in a suit for specific performance the delivery of possession is inherent, as such, even if no prayer is made for delivery of possession, still the executing court is competent to deliver possession. 

For the aforesaid proposition Shri Arvind Srivastava has relied upon a decision of the Hon'ble Supreme Court in the case of Babu Lal Vs. M/s. Hazari Lal Kishori Lal and others reported in AIR 1982 Supreme Court 818, wherein it has been held that in case the possession was with the contracting party, who was party to the specific performance, 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. In order to satisfy the decree against him completely he is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder and that would be in consonance with the provision of Section 55 (1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits.

Shri M.D. Mishra on the contrary submits that the part of the property in question was not in possession of the executor of the agreement to sale and, therefore, in view of the Section 22(1)(a) of Specific Relief Act unless there was specific pleading for delivery of possession in a suit for specific performance, possession could not be delivered by the executing court.

Shri Arvind Srivastava submits that in the same decision of the Hon'ble Supreme Court it has been clearly provided that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when the suit for specific performance was decreed. He further submits that the Hon'ble Supreme Court in the aforesaid case has further held that in case in a suit for specific performance, for execution of a sale-deed, specific prayer or plea has not been taken for delivery of possession, at any stage of proceeding such plea can be raised. He further submits that in Paragraph 17 of the aforesaid decision 'proceeding' has been explained.

Paragraph 17 of the aforesaid decision of the Hon'ble Supreme Court is quoted herein below :

"The word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process; any act done by authority of a Court of law; any step taken in a cause by either party". The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in S. 22 includes execution proceedings also. In Rameshwar Nath v. Uttar Pradesh Union Bank Ltd., AIR 1956 All 586 such a view was taken. It is a term giving the widest freedom to a Court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution."

From the reading of the aforesaid decision of the Hon'ble Supreme Court it appears that the paramount consideration was to give complete justice to the plaintiff and avoid multiplicity of suits. It is not disputed that the respondents even after getting a decree of specific performance can also file a suit for delivery of possession. The Hon'ble Supreme Court has held that in the same proceeding such a prayer can be made at any stage, even at the stage of execution.

According to the aforesaid proposition of law as laid down by the Hon'ble Supreme Court and from the facts of the case, it does appear that at any stage such an amendment can be made for delivery of possession. In Paragraph 22 of the aforesaid decision the Hon'ble Supreme Court opined "the only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of S. 22 which is only an enabling provision" and also earlier stated that such an amendment can be made at any stage of the proceeding even at the stage of execution of the decree. No such amendment having been made, at this stage the executing court on its own cannot proceed to deliver possession to the respondents. However, liberty is with the respondents to move an application for amendment before the executing court, which may then consider the claim of the respondents and proceed with the matter. Till such time, any further orders are passed by the executing court as directed above, the delivery of possession in the aforesaid proceeding cannot be insisted upon.

With the aforesaid direction, the writ petition is disposed of.

Order Date :- 17.7.2014

Sunil Kr. Gupta