Madhya Pradesh High Court
Ishwardas Limje vs Dattu Digarse (Dead) Thr. Lrs. Jai ... on 21 April, 2022
Author: Purushaindra Kumar Kaurav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE PURUSHAINDRA KUMAR KAURAV
WRIT PETITION No. 2390 OF 2017
Between:-
1. ISHWARDAS LIMJE, SON OF GURUDAYAL
LIMJE, AGED ABOUT 50 YEARS, R/O
MOHGAON HAVELI, TAHSIL SAUSAR,
DISTRICT CHHINDWARA (MADHYA
PRADESH)
2. UPENDRA SINGH, AGED 50 YEARS, S/O
TRIDEV SINGH, R/O VILLAGE BAILWA
SURSARI SINGH TANAY SIRMOR, DISTRICT
REWA (MADHYA PRADESH)
3. RAJESH SINGH, AGED 52 YEARS, S/O
TRIDEV SINGH, R/O VILLAGE BAILWA
SURSARI SINGH TANAY SIRMOR, DISTRICT
REWA (MADHYA PRADESH)
.....PETITIONERS/
DEFENDANT
(BY SHRI JAIDEEP SIRPURKAR, ADVOCATE)
AND
1. DATTU DIGARSE (DEAD).
L.RS.
(1) JAI BAI W/O DATTU, AGED ABOUT 70
YEARS,
(2) BHAURAO, S/O DATTU, AGED ABOUT 49
YEARS,
2
(3) AJAB S/O DATTU, AGED ABOUT 45 YEARS,
(4) MARUTI S/O DATTU, AGED ABOUT 44
YEARS,
(5) BHOJRAH S/O DATTU, AGED ABOUT 43
YEARS,
ALL R/O MUNGNAPAR, TEHSIL SAUSAR,
DISTRICT CHHINDWARA (MADHYA
PRADESH).
2. STATE OF MADHYA PRADESH, THROUGH
THE COLLECTOR, TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
....RESPONDENT
(SHRI GHANSHYTAM SINGH BAGHEL, ADVOCATE FOR
RESPONDENT NO.1 AND SHRI GIRISH KEKRE FOR THE
RESPONDENT NO.2-STATE)
(SHRI R.K.SANGHI - AMICUS CURIAE)
__________________________________________________________________
Reserved on : 10.03.2022
Delivered on : 21.04.2022
--------------------------------------------------------------------------------------------------
ORDER
The petitioner has filed the instant petition under Article 227 of the
Constitution, challenging order dated 25.04.2016 and 22.12.2016, passed by
the Executing Court in Execution Case No.200118/1991.
2. The case of the petitioner-judgment debtor is that the respondent-
decree holder had filed a suit for specific performance for the land in
dispute. On 30.9.1996, the Civil Suit was decreed in favour of the
respondent-decree holder. On 5.12.1998, the First Appeal preferred by the
petitioner-judgment debtor against the judgment and decree passed by the
trial Court, was dismissed. On 24.04.2013, Second appeal No.316/1999,
was also dismissed by this Court and, therefore, the judgment and decree
passed by the trial Court attained finality. The decree was put to execution
by the respondent-decree holder for getting the sale deed executed. The
respondent-decree holder filed an application under Section 146 read with
Section 153 of the Code of Civil Procedure, wherein, it was stated that the
land in question has been acquired by the State Government and, therefore,
the Land Acquisition Officer is a necessary party so that appropriate
direction can be given to him to pay the compensation to the respondent-
decree holder. The said application was opposed by the petitioner-judgment
debtor. It was submitted by the petitioner-judgment debtor that the
petitioner-judgment debtor was the owner and from his ownership, on
account of the acquisition of the land, the title has vested with the State
Government and, therefore, the decree in question has become non-
executable as the petitioner-judgment debtor cannot execute the sale deed
when the land does not vest with him as on date.
3. Vide impugned order dated 25.04.2016, the executing Court has noted
that the award dated 25.11.2014 was pronounced and the respondent-decree
holder is entitled for execution of decree dated 07.12.1998 and, therefore,
the petitioner judgment-debtor was directed to execute the sale deed in
favour of the respondent-decree holder. By the said order dated 25.04.2016,
the Land Acquisition Officer was also directed not to disburse the amount of
compensation in favour of the petitioner-judgment debtor. By subsequent
order dated 22.12.2016, further steps were taken to send the proforma of the
proposed sale deed to the Collector of Stamp for proof reading and for
calculation of the stamp duty.
4. The learned counsel appearing for the petitioner-judgment debtor
submits that when the petitioner is not the valid title holder of the land,
therefore, he cannot execute the sale deed and such a sale deed would be null
and void. He places reliance on a decision of the Supreme Court in the case
of Gian Chand Vs. Gopala and others1 and Sneh Prabha (Smt.) and others
Vs. State of U.P. and another2.
5. Learned counsel appearing for the respondent-decree holder submits
that the impugned orders are strictly in accordance with law. This Court
should not interfere under Article 227 of the Constitution of India. The
respondent-decree holder is pursuing his remedy for more than two decades.
He is entitled for the fruits of the decree. He should not be deprived of his
rights only on the ground that the land in question has been acquired by the
State Government. Even if the land is acquired, the appropriate direction for
payment of compensation to the respondent-decree holder can always be
given by the executing Court. The executing Court is empowered to suitably
modify the decree and, therefore, no error has been caused.
1 (1995) 2 SCC 528
2 (1996) 7 SCC 426
6. I have heard the learned counsel for the parties and perused the
record.
7. Section 22 of the Specific Relief Act, 1963 (hereinafter referred to as
"The Act of 1963") deals with power to grant relief for possession, partition,
refund of earnest money, etc. It is provided in Section 22 of the Act of 1963
that 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.
8. Sub-section (2) of Section 22 of the Act of 1963 provides that no
relief under clause (a) or clause (b) of sub-section (1) shall be granted by the
Court unless it has been specifically claimed. The proviso to Sub-section (2)
of Section 22 of the Act of 1963 provides 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.
9. It would be appropriate to make a reference to Section 27 of the
Specific Relief Act, 1963 (hereinafter referred to as "The Act of 1963"),
which reads as under:-
"27. When rescission may be adjudged or refused. - (1) Any
person interested in a contract may sue to have it rescinded,
and such rescission may be adjudged by the Court in any of the
following cases, namely:
(a) where the contract is voidable or terminable by the
plaintiff;
(b) where the contract is unlawful for causes not apparent on
its face and the defendant is more to blame than the plaintiff.
(2) Notwithstanding anything contained in sub-section (1), the
Court may refuse to rescind the contract
(a) where the plaintiff has expressly or impliedly ratified the
contract; or
(b) where, owing to the change of circumstances which has
taken place since the making of the contract (not being due to
any act of the defendant himself), the parties cannot be
substantially restored to the position in which they stood when
the contract was made; or
(c) where third parties have, during the subsistence of the
contract, acquired rights in good faith without notice and for
value; or
(d) where only a part of the contract is sought to be rescinded
and such part is not severable from the rest of the contract."
10. It is thus seen that Section 27 of the Specific Relief Act empowers the
Court to grant various reliefs adjudging various situations as stipulated
therein.
11. The Hon'ble Supreme Court in the matter of Babu Lal Vs. M/s
Hazari Lal Kishori Lal and others3, had an occasion to consider the
provisions of Specific Relief Act in the context of the suit for Specific
Performance Act, when vendor sold property to another person in defiance
of previous agreement. The Hon'ble Supreme Court has held that Section
22 of the Specific Relief Act stipulates a rule of pleading that a person in a
3 AIR 1982 SC 818
suit for specific performance of a contract for the transfer of immovable
property, may ask for appropriate reliefs, namely, he may ask for possession,
or for partition, or for separate possession including the relief for specific
performance. These reliefs he can claim, notwithstanding anything contained
in the Code of Civil Procedure, 1908, to the contrary. Sub Section (2) of
Section 22 specifically provides that these reliefs cannot be granted by the
Court unless they have been expressly claimed by the plaintiff in the suit.
However, the proviso to Sub Section 2 of Section 22 says that where the
plaintiff has not specifically claimed these reliefs in his plaint, in the initial
stage of the suit, the Court shall permit the plaintiff, at any stage of the
proceedings, to include one or more of the reliefs, by means of amendment
of the plaint on such terms as it may deem proper. The only purpose of this
provision is to avoid multiplicity of the suits and the plaintiff may get
appropriate relief without being hampered by the procedural complications.
In para-17 of the said judgment, the Hon'ble Supreme Court has held that
the word "proceedings" in Section 22 includes "executing proceedings" also.
Para-17 of the said judgment is reproduced as under :-
"17. 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
section 22 includes execution proceedings also. In Rameshwar
Nath v. Uttar Pradesh Union Bank 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 makes 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."
12. The Hon'ble Supreme Court in the matter of Uday Shankar Triyar
Vs. Ram Kalewar Prasad Singh and another4 has considered well
recognized exceptions to the principle of pleadings. It has been held that
non compliance with any procedural requirement relating to pleadings,
memorandum of appeal or application or petition for relief should not entail
automatic dismissal or rejection unless the relevant statutes or rule so
mandates. Para-17 of the decision is reproduced as under :-
"17. Non-compliance with any procedural requirement
relating to a pleading, memorandum of appeal or application
or petition for relief should not entail automatic dismissal or
rejection, unless the relevant statute or rule so mandates.
Procedural defects and irregularities which are curable should
not be allowed to defeat substantive rights or to cause
injustice. Procedure, a hand-maiden to justice, should never be
made a tool to deny justice or perpetuate injustice, by any
oppressive or punitive use. The well recognized exceptions to
this principle are :-
(i) where the Statute prescribing the procedure, also prescribes
specifically the consequence of non-compliance.
(ii) where the procedural defect is not rectified, even after it is
pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be
deliberate or mischievous;
4 (2006) 1 SCC 75.
(iv) where the rectification of defect would affect the case on
merits or will affect the jurisdiction of the court.
(v) in case of Memorandum of Appeal, there is complete
absence of authority and the appeal is presented without the
knowledge, consent and authority of the appellant;"
13. The learned Single Judge of this Court in the matter of Sushila Devi
and others Vs. Kachrabai and others5 has held that the Court can direct
refund of the amount paid by the plaintiff though not specifically asked for
in the plaint.
14. Taking into consideration the aforesaid legal position, this court is of
the view that the executing court is empowered to grant any other relief
adjudging subsequent development if the same is prayed for by the decree
holder in accordance with law. In the instant case, admittedly no relief has
been claimed on the basis of subsequent development.
15. Section 16 of the Land Acquisition Act, 1894 prescribes that when the
Collector has made an award under section 11, he may take possession of the
land, which shall thereupon vest absolutely in the Government, free from all
encumbrances. Section 54 of the Transfer of Property Act, 1882, defines the
same, which would mean "Sale" is a transfer of ownership in exchange for a
price paid or promised or part-paid and part-promised.
16. The Hon'ble Supreme Court in the matter of Gian Chand1 had an
occasion to consider the controversy related to agreement to sale and its
execution after notifications under the Land Acquisition Act, 1894 were
5 1994 MPLJ 362.
issued. In that case, before sale-deed could be executed between the parties,
vendee had come to know about the notification under Section 4(1) of the
Land Acquisition Act, 1894, therefore, he filed the suit for refund of earnest
money. The trial Court decreed the suit for refund of earnest money with
exchange. In appeal, the District Judge reversed the decree and dismissed the
suit. In second appeal, the High Court dismissed the appeal in limine,
therefore, the vendee was before the Hon'ble Supreme Court in Special
leave to appeal. It has been held that on publication of notification under
Section 4(1) of the Land Acquisition Act, though the same was not
conclusive till declaration under Section 6 was published, the owner of the
land is interdicted to deal with the land as a free agent and to create
encumbrances thereon or to deal with the land in any manner detrimental for
public purpose. It has been held that any sale transaction or encumbrances
created by the owner after publication of the notification under Section 4(1)
would therefore, be void and does not bind the State. The Hon'ble Supreme
Court restored the decree granted by the trial Court and set aside the decree
of reversal passed by the District Judge and affirmed by the High Court.
17. In the case of Sneh Prabha(Smt.)2, the Hon'ble Supreme Court was
considering the case related to notification under the Land Acquisition Act,
1894. It has been held that any person, who purchased the land after
publication of notification under Section 4(1), does so at his/her own peril.
The denial of compensation to a person, who purchased the land after
publication of notification under Section 4(1) was held to be proper in view
of the provisions of the Land Acquisition Act, 1894.
18. In view of the provisions of the Land Acquisition Act, no valid sale
can take place between the parties when the vendor does not have the
ownership. Since the land in question has already vested with the State
Government, therefore, the judgment debtor cannot legally execute any sale-
deed in favour of the decree holder. Hence, directions to the
petitioner/judgment debtor to execute the sale-deed in favour of the decree
holder is found against the law and accordingly, the same is set aside.
19. In view of the aforesaid, the impugned orders dated 25.04.2016 and
22.12.2016 passed by the Executing Court in Execution Case No.200118-
1991 are set aside. Respondent- decree holder would be at liberty to make
appropriate application before the executing court in accordance with law
for the prayer of appropriate relief as may be permissible, which may be
considered in accordance with law expeditiously.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
A.Praj.
ASHWANI PRAJAPATI
2022.04.22 12:41:51 +05'30'
