Andhra Pradesh High Court - Amravati
K Ramachandra Reddy 2 Others vs K Sivarami Reddy 10 Others on 23 August, 2024
APHC010747472015
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3460]
(Special Original Jurisdiction)
FRIDAY, THE TWENTY THIRD DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NO: 5872/2015
Between:
K Ramachandra Reddy & 2 others ...PETITIONER(S)
AND
K Sivarami Reddy and 10 others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. MADHAVA RAO NALLURI
Counsel for the Respondent(S):
1. INENI VENKATA PRASAD
The Court made the following:
2
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
C.R.P.No.5872 of 2015
ORDER:
1. The present Civil Revision Petition is filed against the Order in
E.A.No.5 of 2013 in E.P.No.25 of 2007 in O.S.No.21 of 1987 dated
22.04.2014 passed by the Senior Civil Judge, Penukonda,
Anantapur District.
2. The facts so far:-
The petitioners herein are the J.Drs. A suit was filed by the
Respondent No.1 herein for specific performance of an un-registered
Sale Deed dated 28.04.1980. The suit was filed in the year 1983 and
was numbered as O.S.No.148 of 1983 on the file of the District
Munsif, Hindupur. Subsequently, the suit was transferred to the
Subordinate Judge, Penukonda and the suit was re-numbered as
O.S.No.21 of 1987.
3. The suit was decreed after trial on 21.04.1989 and the
defendants were directed to execute the sale deed. The appeal filed
thereon i.e. A.S.No.32 of 1989 was dismissed on 26.09.1994 and
S.A.No.152 of 1995 was also dismissed by this Court on 29.11.2007.
Subsequently, the decree holder filed E.P.No.25 of 2007 for
execution of registered Sale Deed. The said sale deed was executed
through Court vide registered Sale Deed document No.3419/2011,
dated 23.12.2011.
4. Thereafter, the D.Hr filed E.A for delivery of physical
possession of the suit schedule property. At that stage, the
respondents filed counter contending that the suit schedule property
is a joint family property and as such the mother of Respondent No.5
i.e. Respondent No.3 herein did not have any authority to execute
the agreement of sale and the decree is not binding on them.
5. The executing Court vide Order dated 22.04.2014 rejected the
objection stating that at that stage delivery of physical possession of
the suit schedule property cannot be considered. Hence, the present
C.R.P is filed.
6. Heard Sri Madhava Rao Nalluri, learned counsel for the
petitioners and Sri Ineni Venkata Prasad, learned counsel for the
respondents.
7. Arguments: In the grounds of revision, the sole ground taken
was that there is no decree for possession even though the suit for
specific performance was granted. This ground was reiterated by the
counsel for the petitioners in the arguments and the decision of
Hon'ble Supreme Court in Adcon Electronics Pvt. Ltd., vs. Daulat
and Another1 was cited. The counsel for the respondents
contended that even in the absence of relief of possession in the
decree, as the suit is for specific performance, the executing Court
can deliver possession in view of Section 22 of the Specific
Relief Act.
(2001) 7 Supreme Court cases 698
8. Reasoning of the Court: The primary ground taken before
the trial Court that the suit properties are joint family properties was
rightly rejected as at the stage of delivery of possession of the
schedule property, this objection could not have been raised and
more so in view of the execution of the registered Sale Deed vide
document No.3419/2011, dated 23.12.2011 through Court, pursuant
to the Judgment and Decree in the suit. The execution of Sale Deed
is on behalf of the executor of the suit agreement of sale and the
J.Drs cannot have any objection for the same, when they were
parties to the judgment and decree.
9. Coming to the objection with regard to the relief of possession
the Hon'ble Supreme Court in Babu Lal vs. M/s Hazari Lal Kishori
Lal & Others2 had considered whether possession could be
delivered to the decree holder in spite of there being an omission to
specifically seek for the same in the plaint. The Hon'ble Supreme
Court held that omission to specifically seek for possession in the
plaint is not an absolute bar to seek for possession in view of Section
22 of the Specific Relief Act and termed the objection as hyper
technical. The Paragraph 23 thereof reads as under:-
"23. There has been a protracted litigation and it has dragged on practically for about
13 years and it will be really a travesty of justice to ask the decree-holders to file a
separate suit for possession. The objection of the petitioner is hyper technical.
The executing Court has every jurisdiction to allow the amendment. The only
difficulty is that instead of granting a relief of possession the High Court should have
allowed an amendment in the plaint. The mere omission of the High Court to allow an
amendment in the plaint is not so fatal as to deprive the decree-holders of the
benefits of the decree when Section 55 of the Transfer of Property Act authorises the
transferee to get possession in pursuance of a sale deed."
(1982) 1 SCC 525
10. The Hon'ble Supreme Court in the case cited by the counsel
for the petitioners in Adcon Electronics Pvt. Ltd., vs. Daulat and
Another1 had held that in the absence of relief for possession
sought in the plaint, the Court cannot grant said relief. However, the
judgment of Hon'ble Supreme Court in Babu Lal vs. M/s Hazari Lal
Kishori Lal & Others2 was not cited.
11. Noting the divergent views on this aspect, the Hon'ble
Supreme Court in Manickam @ Thandapani & Another vs.
Vasantha3 considered Section 22 of the Specific Relief Act and the
judgments of various High Courts as also the judgments referred
above, held that the relief of possession need not be specifically
claimed in the plaint. The Paragraphs 25 & 26 are extracted
hereunder:-
"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 sub-section (1) shall be granted by
the court unless it has been specifically claimed", but the proviso
2022 LiveLaw (SC) 395
takes out the mandatory nature from the substantive provision of sub-
section (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. 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. Sub-section (2) is a matter of
procedure to avoid multiplicity of proceedings. The procedural laws
are handmaid of justice and cannot defeat the substantive rights."
12. In the light of the judgments of Hon'ble Supreme Court,
the objection of the petitioners for delivery of possession cannot be
sustained. There are no merits in the C.R.P and the same stands
dismissed.
There shall be no order as to costs. As a sequel, pending
applications, if any, shall stand closed.
__________________
NYAPATHY VIJAY, J
Date: 23.08.2024
IS
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
Date: 23.08.2024
IS
