Gujarat High Court
Roshankumar Rameshbhai Patel vs Kantaben Ramanbhai Dalwadi on 10 October, 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
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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;
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(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.
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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
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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.
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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.
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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
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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
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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
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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)
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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
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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
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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
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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
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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
