ORDER
P.S. Narayana, J.
1. This Court ordered notice before admission on 30-8-2006 and granted (interim stay for a limited period, which is being extended from time to time Sri M. Rama Krishna, learned Counsel entered appearance on behalf of respondent-decree holder.
2. Sri K. V. Bhanu Prasad, learned Counsel representing the revision petitioners-judgment debtors, would maintain that when the relief of delivery of possession was not specifically prayed for, it is not open to the executing Court to order delivery and the same is without jurisdiction. The learned Counsel also would contend that unless the plaint and the relief portion are amended in this regard, a decree also cannot be passed relating to delivery of possession and when that being so ordering delivery of possession in such a case cannot be sustained. The learned Counsel also would submit that the revision petitioners-judgment debtors had taken an objection by filing E.A. No. 221 of 2005 in E.P. No. 128 of 2004 under Section 47 read with Section 151 of C.P.C. and the learned II Additional Senior Civil Judge, Warangal, erroneously dismissed the said application. The learned Counsel also placed reliance on a decision in Adcon Electronics Pvt. Ltd. v. Daulat and Anr. : AIR2001SC3712 .
3. Per contra, Sri M. Rama Krishna, learned Counsel representing respondent-decree holder would maintain that when there is a direction to execute sale deed in a suit for specific performance, it implies delivery of possession, as well, since delivery of possession is only ancillary to the execution of the sale deed. The counsel also would maintain when that being so merely because such relief was not specifically prayed for in the plaint, the same cannot be taken advantage of and objection cannot be raised in this regard. The learned Counsel also had drawn attention of this Court to Section 22 of the Specific Relief Act, 1963, and Section 55 of the Transfer of Property Act, 1882, and would maintain that in the light of the rights and obligations of both the buyer and seller as specified by the provisions of the Transfer of Property Act, 1882, inasmuch as it is the bounden duty of the seller to deliver possession of the property as well when the execution of the sale deed is ordered by virtue of granting of relief of specific performance, it would imply that delivery of pos session as well had been ordered. The counsel also would maintain that this is not a case where any other third party had intervened and when that being so the revision petitioners-judgment debtors are bound to deliver possession of the property, as well, as per Section 55 of the Transfer of Property Act, 1882, and hence cannot raise such an objection with a view to defeat the execution of the decree. The learned Counsel also would maintain that the decree may have to be executed in its true letter and spirit. When a decree for specific performance is made, execution of the sale deed and such possession, which is permissible under law, also may have to be given. The learned Counsel also placed reliance on the decisions in S.S. Rajabathar v. N.A. Sayeed : AIR1974Mad289 ; Mahender Nath Gupta v. Moti Ram Rattan Chand and Anr. : AIR1975Delhi155 ; Lotu Bandu Sonavane v. Pundalik Nimba Koli : AIR1985Bom412 ; and Hemchand v. Karilal .
4. Heard the counsel.
5. The revision petitioners-judgment debtors filed E.A. No. 221 of 2005 in E.P. No. 128 of 2004 on the file of II Additional Senior Civil Judge, Warangal, under Section 47 read with Section 151 of the C.P.C. (hereinafter in short referred as 'the Code' for the purpose of convenience) raising an objection relating to the executability of the decree in granting possession on the ground that such relief was not prayed for in the plaint and such relief was not incorporated even in the decree. The learned Judge after recording reasons at Paras 5 and 6 ultimately dismissed the said application. Aggrieved by the same, the present revision is preferred.
6. The specific stand taken by the revision petitioners-judgment debtors in the application filed under Section 47 read with Section 151 of the Code is that inasmuch as respondent, decree holder, did not pray for delivery of possession, in the plaint the E.P. itself is not maintainable and hence the E.P. is liable to be dismissed. However, the respondent-decree holder had taken a specific stand that she had already deposited the amount and relating to filing of the draft sale deed whenever the Court directs the same would be filed. Further, specific stand was taken that inasmuch as the suit is for relief of specific performance and execution of registered sale deed, there is no need to pray for a separate relief relating to delivery of possession, since the execution of the sale deed would automatically include the delivery of possession as well. Section 22 of the Specific Relief Act, 1963, reads as hereunder.
22. Power to grant relief for possession, partition, refund of earnest money, etc. (1) 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.
(2) No relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the Court unless it has been specifically claimed:
Provided 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.
(3) The power of the Court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation under Section 21.
7. Section 55 of the Transfer of Property Act, 1882, deals with rights and liabilities of buyer and seller. It may be appropriate to have a look at Sub-section (1) which specifies as hereunder.
55. Rights and liabilities of buyer and seller:
In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights mentioned in the rules next following, or such of them as are applicable to the property sold:
(1) the seller is bound-
(a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or powers;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property to take as much care of the property and all documents of title relating thereto which are in his possession, as an owner of ordinary prudence would take of such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of property up to the date of the sale, the interest on all encumbrances on such property due on such date, and except where the property is sold subject to incumbrances, to discharge all incumbrances on the property then existing.
On a careful analysis of the legal obligations cast on the seller referred to supra, especially (e) and (f), it is clear that between the date of the contract of sale and the delivery of the property the seller to take as much care of the property and all documents of title relating thereto, which are in possession as owner of ordinary prudence, would take of such property and documents and further 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.
8. The Apex Court in Babu Lal v. Hazari Lal Kishore Lal and Ors. : [1982]3SCR94 held as under.
The expression in Sub-section (1) of Section 22 'in an appropriate case' is very significant. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case'. As pointed out earlier, in view of Order 2, Rule 2 of Civil P.C. some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession 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. 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. This is in consonance with the provisions of Section 55 of the T.P. 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.
It may be pointed out that the Additional Civil, Judge had decreed the suit for specific performance of the contract. The High Court modified the decree to the extent that the sale deed was to be executed by respondents Nos. 6 to 9 together with the petitioner. In short, the decree was passed by the High Court not only against respondents Nos. 6 to 9 but also against the subsequent purchaser i.e., the petitioner and thus the petitioner was himself the judgment-debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed. The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases. This argument ignores the significance of the words 'in an appropriate case'. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immoveable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. Besides, the proviso to Sub-section (2) of Section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief 'at any stage of the proceedings'.
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 Ltd. : AIR1956All586 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.
In Mahendra Nath Gupta v. Moti Ram Rattan Chand : AIR1975Delhi155 , the Delhi High Court endorsed the view taken in Balmukand v. Veer Chand : AIR1954All643 (supra) that where in a suit for specific performance of the contract for sale relief for possession is not claimed and consequently the decree passed in the suit contains no relief for delivery of possession the Court executing the decree is competent to deliver possession, an order directing delivery of possession being merely incidental to the execution of the deed of sale. The Court, however, observed that on March 1, 1964 Specific Relief Act of 1963 came into force and this Act altered the law by enacting Section 22. It made it necessary for the plaintiff to ask specifically the relief of possession in suits for specific performance. The Court, however, held that Section 22 of the Specific Relief Act of 1963 had no application to that case as the decree was passed when the old Act was in force.
The same High Court, however, in Ex-Servicemen Enterprises (P) Ltd. v. Sumey Singh AIR 1976 Delhi 56 considered the effect of Section 22(2) with its proviso. In that case the decree did not give the plaintiff the relief of possession. The question arose: Was the Court powerless to put him in possession of the property though he had a decree for specific performance in his favour? The Delhi High Court observed (at pp. 58, 59):
Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule 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 specific performance is decreed. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession.
In my opinion the proviso gives ample power to a Court to allow the amendment of the plaint even at this stage. The proviso says that the amendment of the plaint can be allowed 'at any stage of the proceedings' on such terms as may be just for including a claim for possession where the plaintiff has not claimed such relief in his original plaint..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 in my opinion includes execution proceedings also.
The High Court had relied upon Rameshwar Nath v. U.P. Union Bank Ltd. : AIR1956All586 for its decision in this case. We are in complete agreement with the view taken by the Delhi Court in this case.
9. The decision of the Apex Court in Adcon Electronics Pvt. Ltd. v. Daulat and Anr. AIR 2001 SC 3712 cited supra was relied on wherein the Apex Court held that Section 22(1) of Specific Relief Act, 1963, is an enabling provision and the relief of possession can be granted only if specifically prayed for, and hence, simpliciter for specific performance of a contract for sale of land is a suit for enforcement of the terms of the contract and cannot be treated as a 'suit for land' and title to the land concerned is not subject-matter of a suit for specific performance. On a careful analysis, the facts of this decision appear to be distinguishable. In S.S. Rajabathar v. N.A. Sayeed AIR 1974 Madras 289 it was held that where a suit for specific performance of a contract of sale had been decreed, the executing Court while executing the decree, can direct delivery of possession in the absence of a specific direction to that effect in the decree. The view expressed in Brij Mohan Matulal v. Mt. Chandrabhagabai AIR 1948 Nag 406 was dissented from. In Mahender Nath Gupta v. Moti Ram Rattan Chand and Anr. AIR 1975 Delhi 155 the learned Judge of the Delhi High Court while dealing with the suit for specific performance of contract of sale which was filed before the commencement of the Specific Relief Act, 1963, and decree made after the commencement of the said Act, relief of delivery of possession neither claimed in the plaint nor granted in the decree and whether executing Court can grant delivery of possession, after referring to AIR 1967 SC 1541, AIR 1954 Allahabad 643, AIR 1952 Calcutta 362, AIR 1950 Allahabad 415, held in the affirmative mainly on the ground that Section 22 of the Specific Relief Act, 1963, indicates a rule of pleading. In Lotu Bandu Sonavane v. Pundalik Nimba Koli AIR 1985 Bombay 412. Section 22(1) and Section 22(2) Proviso of the Specific Relief Act, 1963 had been dealt with. The expression 'in an appropriate case' in Section 22(1) and 'at any stage of the proceeding' in proviso to Section 22(2) it was held that decree directing specific performance of agreement of sale against defendant in possession of property specific prayer for delivery of possession is not necessary. In Hemchand v. Karilal AIR 1987 Rajasthan 117 it was held that in a suit for specific performance, property in possession of contracting party and no third party had intervened, relief of possession would be implied in decree for specific performance and need not be specifically asked for and the question of amendment of plaint does not arise. Reliance also was placed on a decision in V. Narasimha Chary v. P. Radha Bai and Ors. 1999 (5) ALT 499.
10. In the light of the statutory duties and obligations cast on the seller by virtue of Section 55 of the Transfer of Property Act, 1882, and also in the light of the scope and ambit of Section 22 of the Specific Relief Act, 1963, this Court is of the considered opinion that when there is no dispute or controversy that the judgment debtors-defendants are in possession of the property, the mere fact that such specific prayer was not made, the same cannot be taken advantage of principally for the reason the decree for execution of sale deed would imply the decree of delivery of possession too inasmuch as these are the obligations which would flow from the relief relating to execution of the sale deed. Hence, this omission cannot be taken advantage of. It is pertinent to note that it is nobody's case that any third party rights had intervened. When that being so, this Court is of the considered opinion that the impugned order does not suffer from any illegality, whatsoever.
11. Accordingly, the civil revision petition shall stand dismissed. In the peculiar facts and circumstances, the parties to bear their own costs.