Mitra, J.@mdashThe present revisional application is a typical example of the desperate effort of the judgment-debtor to ward off the execution of
the decree till the bailiff knocks at the door. The case as made out by the petitioner in the revisional application inter alia, is that the opposite party
filed a suit for specific performance of contract against the petitioner being Title Suit No. 37 of 1973 in the Court of the learned Munsif at Uluberia,
Howrah, inter alia, on the allegation that there was an unregistered agreement for sale of the disputed land executed by the petitioner in favour of
the opposite party on 18th June, 1973 for Rs. 3,000/- and Rs. 2,000/- was received by the petitioners, but he refused to accept the balance
amount and to execute the necessary sale deed inspite of repeated tenders and demands. The suit has contested by the petitioner denying and
disputing the plaintiff''s allegations. Ultimately, however, the suit was decreed which decree was even affirmed up to this Hon''ble Court in second
appeal. The opposite party put the said decree into execution, consequent to which, Title Execution Case No. 14 of 1976 was started, and the
petitioner filed objection u/s 47 of the CPC in the said execution case which gave rise to Misc. Case No. 84 of 1983, in which it was contended
inter alia, by the petitioner judgment-debtor that since the description of the suit property as made in the plaint was vague and as there was no
prayer for delivery of possession in the plaint, the decree for specific performance of contract passed against him was in executable. The learned
munsif, however, by his Order NO. 66 dated 26th March, 1988 dismissed the said Misc. Case No. 84 of 1983 holding inter alia, that there was
no merit in the said objection and the judgment-debtor was not only bound to execute the sale deed in question, he was also bound to put the
decree holder into possession of the disputed property in terms of the decree as well, in view of the specific provisions of Section 55(1)(f) of the
Transfer of Property Act. The petitioner has challenged the said order of the learned Munsif in the present revisional application.
2. It is contended by Mr. Mukherjee, learned Advocate appearing on behalf of the petitioner that the description of the suit property as given in the
plaint, was vague and not demarcated and as the decree-holder did not pray for recovery of possession, the decree for specific performance of
contract passed against his client was in executable in view of the provisions of Section 22(2) of the Specific Relief Act, 1963.
3. Mr. Dey, Learned Counsel, appearing on behalf of the opposite party, however, tries to support the impugned order contending inter alia, that
the prayer for delivery of possession is not mandatory in a suit for specific performance of contract and u/s 55(1)(f) of the Transfer of property Act
with the execution of the deed of sale, the seller is bound to deliver possession of the property to the purchaser, and if it is not done, the Court can
direct him to do so in execution of the decree for specific performance of contract passed against him after the deed was executed in terms of the
said decree and the description of the suit property as given in the plaint is not vague. Several decisions have been cited at the Bar, namely, AIR
1977 All 136; AIR 1981 Calc 79 ; Babu Lal Vs. Hazari Lal Kishori Lal and Others, and 1982(2) CHN 187.
4. So far as the decision in the case of Gyasa Vs. Smt. Risalo, is concerned, it has been held therein inter alia, that 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, the judgment-debtor 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)(f)
of the Transfer of Property 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.
5. In the Single Bench decision of this Hon''ble Court in the case of Atul Ch. Sardar vs. Smt. Pramila Bala Dasi & Anr. [1982 (II) CHN 187 ]
N.C. Mukherji, J., however, held discussing the scope and ambit of Section 22(2) of the Specific Relief Act, 1963 that if there was no amendment
of the plaint in a suit for specific performance of contract for inclusion or the prayer for recovery of possession, and if there was no decree for
recovery of possession, the executing court could not allow the decree-holder''s prayer for recovery of possession simply because the execution
petition was amended. So far as the decision of this Hon''ble Court in the case of Smt. Swaranalatika Sarkar Vs. Smt. Prativa Rani Sarkar, is
concerned, it was held inter alia therein by A.K. janah, J., that where the execution proceeding, started consequent to a decree for specific
performance of contract without any direction for delivery of possession, was disposed of in full satisfaction of the decree, an application for
amendment of the plaint for inclusion of the prayer for delivery of possession made subsequent to the disposal of the said execution proceeding,
could not be allowed by the Court inasmuch as at the relevant time no execution proceeding was pending.
6. The Supreme Court, in its decision in the case of Babu Lal Vs. Hazari Lal Kishori Lal and Others, , ho waver, has explained the scope and
ambit of Section 22 of the Specific Relief Act, 1963 vis-a-vis Sections 21 and 28 of the said Act and Section 55(1)(f) of the Transfer of property
Act.
7. Section 22 of the Specific Relif Act, 1963 which is quoted below, speaks of the power of the Court to grant relief for possession, partition,
refund of earnest money, etc., in a suit for specific performance of contract :-
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 (5 of 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 u/s
21.
8. u/s 28(3) of the Specific Relief Act, 1963, it is also provided inter alia, that if the purchaser or lessee pays the purchase money or other sum
which he is directed to pay under a decree for specific performance of contract within the stipulated period, the court may, on application made in
the same suit, award the purchaser or lessee such further relief as he may be entitled to including the delivery of possession, and under sub-section
(4) of the said Section 28, filing of separate suit for such relief is barred. The said Section 28(3) and (4) are quoted below : -
28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, '' the specific performance of which has been
decreed.
(1).....
(2)....
(3) If the purchaser or leasee pays the purchase money or other sum which he is ordered to pay under the decree within the period, referred to in
sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to,
including in appropriate cases all or any of the following reliefs, namely :-
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or
lessee, as the case may be.
9. Section 55 of the Transfer of Property Act relates to the rights and liabilities of buyers and sellers. Subsection (1) of the said Section 55 relates
to the liabilities of the seller and taking the clauses (d) and (f) of sub-section (1) of Section 55 of the aforesaid Act together, it would clearly
appear, that the seller is bound, 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 and to give, on being so required, the buyer, or such person as he
directs, such possession of the property as its nature admits. From the aforesaid clauses, it is, therefore, quite clear, that it is the duty of the seller to
give possession and not to leave the buyer to get possession for himself.
10. The principle, that the relief for possession is inherent in the relief for specific performance of the contract of sale, and that in execution of a
decree for specific performance of a contract of sale, the decree holder is entitled to possession over the property even if no such relief was
specifically claimed in the suit or granted under the decree, however, was accepted by different High Courts in India.
11. In Kartik Chandra Pal Vs. Dibakar Bhattacharjee, , a Division Bench of this Hon''ble Court, after reviewing a number of earlier decisions of
different High Courts, including this Hon''ble Court, observed (at p. 363) :
It is incontestable that in a suit for specific performance of contract for the sale of land it is open to the plaintiff to join in the same suit two prayers,
one for the execution of the deed of transfer and another for recovery of possession of the land in question.
.......... We ought to remember in this connection that no special form of decree in a suit for specific performance is supplied by the Civil Procedure
Code. Chapter 11, Specific Relief Act, deals with the various circumstances under which a contract may be enforced specifically and where it can
not be allowed. When a contract is to be specifically, enforced, it means simply this that when the parties do not agree to perform the contract
mutually the intervention of the Court is required and the Court will do all such things as the parties would have been bound to do had this been
done without the intervention of the Court. A sale of a property after payment of the consideration and upon due execution of the deed of sale
presupposes and requires the vendor to put the purchaser in possession of the property. It cannot be suggested that when a party comes to Court
for a specific performance of a contract he is to be sataisfied with simply the execution of the document on payment of the consideration money.
The Court when allowing the prayer for specific performance vests the executing Court with all the powers which are required to give full effect to
the decree for specific performance. By the decree for specific performance, the courts sets out what it finds to be the real contract exists and it is
for the execution Court to do the rest.
12. It may be noticed further that a decree in a suit for specific performance has been considered to be somewhat in the nature of preliminary
decree which cannot set out in the fullest detail all the different steps which are required to be taken to implement the main portion of the order
directing specific performance of the contract. The executing Court is in such a case vested with authority to issue necessary directions.
13. In the case of Arjun Singh Vs. Sahu Maharaj Narain, it was observed :
The nature of the relief granted by the decree in a suit for specific performance of a contract for sale is such that everything which is necessary for
the contract to be specifically performed should be held to be comprised in it. A contract for sale includes not only the execution of the sale deed
as required by the Transfer of Property Act, but also putting the vendee in possession of the property sold. As soon as the dead of conveyance is
executed the title to the property in question vests in the vendee. The delivery of possession by the executing Court, therefore, appears to be some
thing incidental to the right of the decree-holder to have the contract specifically performed. ""The deed of conveyance is itself executed by the
execution Court. An order direction delivery of possession to the vendee is merely incidental to the execution of the deed of sale.
14. The same principle of law was reiterated by another later decision of the Allahabad High Court in the case of Pt. Balmukand Vs. Veer Chand,
and also in a still later decision of the same High Court in the case of Gyasa vs. Risalo (supra).
15. Regarding the power of the executing court even in such a case to direct delivery of possession, reference may also be made to the following
observations of the Supreme Court made in paragraph 17 of its decision in Babulal''s, case (supra) while explaining the word ""proceeding"" as
stated in Section 22 of the Specific Relief Act :
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 Vs. U.P. Union Bank Ltd., 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.
16. Although the decisions in Kartik Chandra Pal Vs. Dibakar Bhattacharjee, , Arjun Singh Vs. Sahu Maharaj Narain, and Pt. Balmukand Vs.
Veer Chand, were all delivered when the 1963 Act had not been'' introduced, and although u/s 22 of the 1963 Act any person suing for specific
performance of contract for the transfer of immovable property, may in an appropriate case, ask for possession and unless so asked is not entitled
to get such any relief as per the provisions of sub-section (2) of the said Section 22, the principle of law enunciated by the aforesaid cases, still can
be relied upon inspite of the above statutory bar because of the expression ''in an appropriate case'' which is of great significance and makes all the
differences. The expression ''in an appropriate case'' 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 contract for the transfer of the immovable property. That is to be done where the
circumstances demand it. The relief for specific performance of the contract of sale embrances 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 for possession being inherent in the relief for specific performance of the contract for sale. It cannot,
however, be disputed that in certain circumstances relief of possession cannot be effectively granted to the decree-holder without specifically
claiming relief for possession e.g., where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case,
the plaintiff in order to obtain complete and effective relief, must claim partition of the property and possession over the share of the defendant.
Earlier, in view of Order II, Rule 2, Civil procedure Code, 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 visualised 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. It appears that Section 22 of the Specific Relief Act was enacted to get over such technical difficulties and to avoid
multiplicity of suits 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(1)(f) of the Transfer of Property 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.
17. The Supreme Court in its above decision also referred to and discussed the aforesaid decisions in Kartik Chandra Pal Vs. Dibakar
Bhattacharjee, and Rameshwar Nath Vs. U.P. Union Bank Ltd., . Reference may also be made to the decisions of the Delhi High Court in the
cases of Mahendra Nath Gupta vs. M/s. Motiram Rattan Chand ( AIR 1975 Del. 155 ) and Ex-Servicemen Enterprises (p)Ltd. vs. Suney Singh
(AIR 1976 Del. 56) which ware also considered by the Supreme Court in its decision in Babulal''s case (supra). Although, the Supreme Court in
its above decision in paragraphs 23 at page 825 observed that ""the only amendment to be made in the plaint was to aid a relief for possession
necessiated because of the provisions of Section 22 which is only an enabling provision"" and further observed inter alia, in para 24 thereof that ""the
execution court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession the High Court
should have allowed an amendment in the plaint"", such observations cannot be held to be observations made by the Supreme Court in interpreting
the provisions of sub-sections (1) and (2) of Section 22 of the Specific Relief Act, 1963 in respect of each and every suit for specific performance
of contract for sale. In the case before the Supreme Court admittedly, the contracting party after entering into an agreement for sale of certain plots
with the intending purchaser and after receiving the earnest money, had subsequently executed a deed of sale in respect of the self same plots in
favour of a third party and delivered possession of the said plots to him and the party who filed the suit for specific performance of contract on the
basis of his earlier agreement for sale, had made the subsequent purchaser a party defendant in the suit without, however, any prayer for delivery
of possession and the High Court passed a decree for specific performance of contract for sale and delivery of possession even without any such
specific prayer for possession which decree was challenged before the Supreme Court and in the context of the facts of that case, the Supreme
Court had the above observations.
18. Undoubtedly, when possession lies with a third party purchaser and not with the contracting party, the plaintiff in a suit for specific performance
of contract for sale, ought to make the third party purchaser a party defendant and pray for delivery of possession and if there is no such specific
prayer, should pray for amendment of the plaint to obviate the Statutory bar of Section 22(2) of the Specific Relief Act, 1963 as the suit in such a
case, would come within the expression ''in an appropriate case'' a stated in Section 22(1) of the said Act. However, as I have already observed
hereinbefore, that where exclusive possession is with the contracting party, a decree for specific performance of contract of sale simpliciter without
specifically providing for delivery of possession, may give compete relief to the decree-holder inasmuch as, in order to satisfy, the decree against
him, the judgment-debtor is bound, not only to execute the sale deed but also to put the property in possession of the decree-holder. In the case
before me, possession of the disputed property lies with the petitioner judgment-debtor namely, the contracting party, and as such the opposite
party decree-holder in his suit for specific performance of contract was not at all required to make any additional prayer for delivery of possession,
as in the present case, the decree for specific performance of contract, that was passed in the suit, is sufficient to give the decree-holder complete
relief inasmuch as, in execution of such a decree for specific performance of contract of sale, the decree-holder is also entitled to get possession of
the disputed property even if no such relief was specifically claimed in the suit, because the relief for specific performance of contract for sale in
such a case, embraces within its ambit everything including delivery of possession, the relief for possession being inherent in the relief for specific
performance of the contract for sale. The above decision of the Supreme Court so far as its observation regarding amendment of the plaint as
stated above therefore, is quite distinguishable on facts.
19. It is also to be borne in mind that the Specific Relief Act, 1963 is not exaustive enactment and under the law relating to the Specific Relief, a
Court which passes a decree for specific performance, retains control over the decree even after the decree has been passed.
20. Considering the facts and circumstances of the present case and also the ratio of the above decisions of the Allahabad and Delhi High Courts
and also the above decision of this Hon''ble Court in the case of Kartick Chandra Pal (supra), I accordingly hold that, the decree for specific
performance of contract in the present case, is quite executable and the executing Court is also competent to pass necessary orders in execution of
such a decree including delivery of possession of the disputed property in favour of the decree-holder no matter whether in the suit for specific
performance of contract for sale, there was any prayer for delivery of possession and no matter whether the decree passed in the suit was a decree
for specific performance of contract for sale simpliciter or a decree for delivery of possession also inasmuch as the facts of the present case clearly
indicate that the suit filed by the plaintiff does not bring it within the expression ''in an appropriate case'' as stated in Section 22(1) of the 1963 Act
to attract the rigours of the provisions of sub-section (2) of the said Section 22 and thus, I find no reason to interfere with the order of the
executing Court under challenge.
21. The revisional application, accordingly, fails and is rejected without any order as to costs. The executing Court is directed to dispose of the
execution proceeding at an early date. Let this order be communicated to the executing Court forthwith.
