Mohd. Yakub Vs. Abdul Rauf and anr.

Mohd. Yakub vs Abdul Rauf and anr.

Disposition Revision allowed Court Madhya Pradesh Decided Nov 30, 2001

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Citation: sooperkanoon.com/498564
Court: Madhya Pradesh High Court
Judge: S.P. Khare, J.
Decided On: Nov 30, 2001
Case Number: Civil Revision No. 2098/2000
Subject: Property
Disposition: Revision allowed

Case Summary

AI-generated summary - not the official court judgment text.

Contract - Execution - Section 55(1)(f) of Transfer of Property Act and Order 21 Rule 90 and Sections 151 and 152 of Code of Civil Proceedure,1908(CPC) - Appellant obtained decree in civil suit against respondent for specific performance of contract of sale of disputed house - Decree was silent about delivery of pos...

Key legal issue: Property
Outcome / disposition: Revision allowed
Acts & sections: Transfer of Property Act, 1882 - Sections 55(1); Specific Relief Act, 1963 - Sections 22, 22(1) and (2); Code of Civil Procedure (CPC), 1908 - Sections 151 and 152 - Order 21, Rule 90

Parties & Advocates

Appellant / Petitioner

Mohd. Yakub

Advocate Ravish Agrawal, Sr. Adv. and ;Ajay Ojha, Adv.

Respondent

Abdul Rauf and anr.

Advocate Faiyaz Khan, Adv.

Legal References

Acts: Transfer of Property Act, 1882 - Sections 55(1); Specific Relief Act, 1963 - Sections 22, 22(1) and (2); Code of Civil Procedure (CPC), 1908 - Sections 151 and 152 - Order 21, Rule 90
Cases Referred: Debabrata v. Biraj Mohan
Reported In: 2002(1)MPHT216; 2002(1)MPLJ475

Excerpt

contract - execution - section 55(1)(f) of transfer of property act and order 21 rule 90 and sections 151 and 152 of code of civil proceedure,1908(cpc) - appellant obtained decree in civil suit against respondent for specific performance of contract of sale of disputed house - decree was silent about delivery of possession of disputed house - appellant submitted application under sections 151 and 152 of cpc for amendment in decree to incorporate relief for delivery of possession - application opposed by judgment-debtor on ground that in absence of prayer for possession in plaint and any direction in decree for delivery of possession, executing court cannot go behind decree and put decree-holder in possession of disputed house - executing court rejected appellant's application - hence, present revision - held, impugned order passed by executing court was contrary to law - as established that sale-deed executed by judgment-debtor in favour of appellant and same was also registered than it has effect of transfer of title in disputed house from judgment-debtor to appellant - thus, appellant entitled to possession of disputed house as provided in section 55(1)(f) of act - executing court has power to direct delivery of possession of property to decree-holder even if decree for specific performance of contract is silent on that point - person in whose favour decree for specific performance of contract has been passed entitled to possession of property -therefore, revision allowed and impugned order set aside - executing court directed to permit appellant to amend plaint to incorporate relief for delivery of possession of house and suitable amendment then will be made in decree for specific performance of contract which has been passed in this case - .....this application was opposed by the judgment-debtor on the ground that in the absence of prayer for possession in the plaint and any direction in the decree for delivery of possession, the executing court cannot go behind the decree and put the decree-holder in possession of the house. respondent no. 2 khwaja abdul hameed submitted a separate application under order 21 rule 90, cpc stating therein that he is actually in possession of the house in dispute in his own right.4. by the impugned order dated 7-8-2000 the executing court has rejected the application of the decree-holder for amendment in the decree and also dismissed the application for execution of the decree for delivery of possession. this has been done on the ground that there is no direction in the decree for delivery of possession.5. the impugned order passed by the executing court is contrary to law. the sale-deed having been executed by the court on behalf of the judgment-debtor in favour of the decree-holder and that sale-deed having been registered has the effect of the transfer of title in the house from the judgment-debtor to the decree-holder. he is entitled to possession as provided in section 55(1)(f) of the transfer of property act. the executing court has the power to direct delivery of possession of the properly to the decree-holder even if the decree for specific performance of contract is silent on that point. the person in whose favour the decree for specific performance of contract has been passed is entitled to possession of the property. the relief of possession is implicit or inherent in the prayer for specific performance of a contract for sale of the property. the executing court in the decree for specific performance of the contract of sale can grant possession to the decree-holder.6. there is a decision of the supreme court in babu lal v. hazari lal kishori lal (air 1982 sc 818) in which it has been held that section 22 of the specific relief act which enacts a rule of.....

Full Judgment

ORDER

S.P. Khare, J.

1. This is a revision by the decree-holder against the order dated 7-8-2000 in execution proceedings in Civil Suit No. 58-A of 1991 of the Court of First Additional District Judge, Burhanpur.

2. Mohd. Yakub has obtained decree in the civil suit mentioned above against Abdul Rauf for specific performance of contract of sale of House No. 316, Ward No. 6, Shah Bazar, Burhanpur, District Khandwa. According to plaintiff Mohd. Yakub, defendant Abdul Rauf had executed the agreement to sell on 21-12-1990 and agreed to sell the house for Rs. 62,501/-. An earnest money of Rs. 3,501/- was given to the vendor on that date. According to the plaintiff he was put in possession of 15 x 18 feet area on the southern side of the house in pursuance of this agreement. The plaintiff paid an amount ofRs. 30,000/- to the defendant on 31-12-1990 and an amount of Rs. 29,000/-after the decree for specific performance of contract was passed. The suit was decreed ex parte on 8-10-1996. The Court executed sale-deed in favour of the decree-holder on 8-3-1998 on behalf of the judgment-debtor. There is a recital in the sale-deed that the title to the house has passed to the plaintiff and he would be put in possession of the house pursuant to the execution of the sale-deed.

3. The decree for specific performance of contract is silent about the delivery of possession of the house to the plaintiff. The decree-holder submitted an application under Sections 151 and 152, CPC on 22-4-1998 for amendment in the decree to incorporate the relief for delivery of possession. In the plaint which was filed claiming specific performance of contract, the relief of possession of the house was not specifically claimed. This application was opposed by the judgment-debtor on the ground that in the absence of prayer for possession in the plaint and any direction in the decree for delivery of possession, the Executing Court cannot go behind the decree and put the decree-holder in possession of the house. Respondent No. 2 Khwaja Abdul Hameed submitted a separate application under Order 21 Rule 90, CPC stating therein that he is actually in possession of the house in dispute in his own right.

4. By the impugned order dated 7-8-2000 the Executing Court has rejected the application of the decree-holder for amendment in the decree and also dismissed the application for execution of the decree for delivery of possession. This has been done on the ground that there is no direction in the decree for delivery of possession.

5. The impugned order passed by the Executing Court is contrary to law. The sale-deed having been executed by the Court on behalf of the judgment-debtor in favour of the decree-holder and that sale-deed having been registered has the effect of the transfer of title in the house from the judgment-debtor to the decree-holder. He is entitled to possession as provided in Section 55(1)(f) of the Transfer of Property Act. The Executing Court has the power to direct delivery of possession of the properly to the decree-holder even if the decree for specific performance of contract is silent on that point. The person in whose favour the decree for specific performance of contract has been passed is entitled to possession of the property. The relief of possession is implicit or inherent in the prayer for specific performance of a contract for sale of the property. The Executing Court in the decree for specific performance of the contract of sale can grant possession to the decree-holder.

6. There is a decision of the Supreme Court in Babu Lal v. Hazari Lal Kishori Lal (AIR 1982 SC 818) in which it has been held that Section 22 of the Specific Relief Act which enacts a rule of pleading provides that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may askfor possession, or for partition or for separate possession including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the CPC, to the contrary. Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. The proviso to this Sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages 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 an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications. The expression 'in an appropriate case' in Section 22(1) is very significant. 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 immovable 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 plaintiff on such terms as may be just for including a claim for such relief 'at any stage of the proceedings'. 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 completed 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(1) 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. The word 'proceeding' has not been defined in the Act. The term 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.

7. In Bata Shoe Co. (P) Ltd. v. Preetam Das, 1982 MPLJ 560, it has been held by this Court that while executing the decree for specific performance, the Court is not only concerned with the execution of the decree only but a further step in the light of Section 55(1)(f) of the Transfer of PropertyAct has also to be directed. Hence when a decree for specific performance does not contain a direction for delivery of possession such a direction can be issued in execution of that decree.

8. Again in Shrikrishna v. Sitaram, 1997 (2) MPLJ 501, it has been held that the person in whose favour decree for specific performance of contract is passed is entitled to possession of the property covered by the sale-deed. There is a decision of the Division Bench of Calcutta High Court in Debabrata v. Biraj Mohan, AIR 1983 Calcutta 51, in which following the decision of the Supreme Court mentioned above it has been ruled that where the Court allowed the plaintiff's prayer for specific performance of the contract which itself incorporated a clause for delivery of possession and the decree contained a direction upon the judgment-debtor to sell the suit property to the plaintiff in terms of the agreement it would necessarily be taken to embody a mandate to fulfil all the terms including the term for delivery of possession. The fact that the decree was silent with regard to the prayer for possession would be immaterial.

9. In the present case the decree-holder applied for amendment in the decree. That amendment can be allowed even in 'execution proceedings' as per dictum of the Supreme Court in the case mentioned above.

10. Therefore, this revision is allowed. The impugned order is set aside. The Executing Court is directed to permit the decree-holder to amend the plaint in the suit to incorporate the relief for delivery of possession of the house and a suitable amendment then will be made in the decree for specific performance of contract which has been passed in this case. The Executing Court will then proceed to deliver the possession of the house to the decree-holder in terms of the sale deed executed by the Court on behalf of the judgment-debtor in favour of the decree-holder. So far as the application of respondent No. 2 Khwaja Abdul Hameed is concerned, the Executing Court will make a necessary enquiry on that application and pass a reasoned order in that behalf after hearing both sides. The application of respondent No. 2 Khwaja Abdul Hameed shall be decided before the order for actual delivery of possession is passed.

11. Civil Revision allowed.

Same Court & Year Madhya Pradesh · 2001 Same Parties Mohd. Yakub vs Abdul Rauf and anr. Same Subject Property Same Judge S.P. Khare, J. Acts & Sections Transfer of Property Act, 1882 - Sections 55(1); Specific Rel...

Property