Andhra Pradesh High Court: In a case wherein the petitioners filed the revision petition under Section 115 of the Civil Procedure Code, 1908 (‘CPC’) to challenge the order dated 13-6-2023 passed by the Execution Court, Ravi Nath Tilhari, J.*, opined that the Execution Court in the execution of a decree for specific performance of the contract had acted within its jurisdiction and the judgment passed by the Execution Court did not call for any interference and accordingly, dismissed the revision petition.
In the instant case, the respondent filed a suit against the petitioners for specific performance of the contract which was decreed on 7-2-2011. Further, on 23-2-2015, the Execution Court executed the sale deed on behalf of the petitioners.
Further on basis of the registered sale deed, the respondent filed an application for delivery of possession of the scheduled property. Thereafter the petitioners, filed an objection stating that the possession could not be delivered as the decree was only for specific performance of the contract and not for delivery of possession.
The Execution Court held that in a suit for specific performance of agreement of sale, specific prayer for delivery of possession was not necessary. Consequently, the application for delivery of possession was allowed and warrant of delivery to deliver the scheduled property to the petitioners based on the registered sale deed was issued. Thus, the revision petition was filed before the Court.
Analysis, Law, and Decision
The Court noted that the decree for specific performance of the contract did not contain the direction to deliver the possession. The Court analysed Section 22 of the Specific Relief Act, 1963 (‘the Act’), and opined that as per Sections 22(1) and 22(2) of the Act, the plaintiff might ask for a relief in a suit for specific performance of contract for transfer of immovable property ‘in an appropriate case’.
he Court relied on Babu Lal v. Hazari Lal Kishori Lal, (1982) 1 SCC 525, wherein it was held that the expression ‘in appropriate case’ under Section 22(1) of the Act was very significant as it indicated that, it was not always mandatory for the plaintiff to claim partition or separate possession over the property, as such relief was inherent in the relief for specific performance of the contract of sale.
Thus, the Court opined that there was also no requirement of granting the relief for delivery of possession separately or specifically, it being inherent in a decree of specific performance of contract and, only in an appropriate case the plaintiff had to claim specifically the delivery of possession in the plaint, originally or by way of the amendment.
The Court opined that in the present case, the possession was with the petitioners, as a result, it was not required to claim relief of possession specifically in the plaint. Thereafter, such relief of possession was inherent in the decree granted for specific performance of contract. Thus, the Court opined that the question of seeking the prayer for delivery of possession, specifically by way of amendment, at any stage, did not arise at all.
The Court further opined that mere mention of Order 21 Rule 95 of CPC would not be fatal to the application for execution for delivery of possession and further held that mere mention of wrong provision or no provision at all did not take away the jurisdiction of Execution Court to execute the decree, as the Execution Court had the jurisdiction under Order 21 Rule 35 of CPC for execution of decree and delivery of possession.
Thus, the Court opined that that the Execution Court in the execution of a decree for specific performance of the contract had acted within its jurisdiction and the judgment passed by the Execution Court did not call for any interference in the exercise of the revisional jurisdiction by this Court, and accordingly, dismissed the revision petition.
[K.V. Srinivasulu v. V. Bhaskar, 2023 SCC OnLine AP 1838, decided on 29-8-2023]
Advocates who appeared in this case :
For the Petitioners: S. Lakshminarayana Reddy, Advocate;
For the Respondent: M. Rahul, Advocate.
*Judgment authored by- Justice Ravi Nath Tilhari