Abhinava Upadhya, J.@mdashBy means of this writ petition the petitioner has challenged the order of the executing court dated 6.5.2013 by which executing court has directed for forceful recovery of possession over the property in question with the help of the Police. It is submitted that a suit for specific performance was filed by the respondents being Suit No. 212 of 1995. In the said suit the petitioner was one of the defendant and the said suit came to be decided on 16.5.2001 and a decree dated 29.5.2001 was passed directing for execution of sale deed through the court.
2. Pursuant to the aforesaid order, sale deed was executed on 1.4.2004 through the court. It is submitted that the aforesaid sale deed was executed in Execution Case No. 33 of 2002. It is also submitted that on 6.5.2013 the executing court further directed to take forceful possession of the property in question with the police help from the defendants, who claim to be in possession of the property.
3. This order dated 6.5.2013 came to be challenged by filing revision being Civil Revision No. 39 of 2013 on which date has been fixed as 25.5.2013.
4. Learned counsel for the petitioner submits that the revisional court without considering the law on the issue has directed for forceful possession and the same order is in the teeth of the judgment of the Supreme Court in the case of
5. According to the learned counsel for the petitioner, in the prayer of the plaint the relief that was sought for, was for the specific performance of execution of sale deed, that prayer was allowed and vide decree dated 6.5.2013 it was directed that the sale deed be executed through the court. Pursuant to the aforesaid decree, the sale deed was executed on 1.4.2004.
6. According to the learned counsel for the petitioner, the execution of the sale deed resulted in satisfaction of the decree and no further action was required in view of Section 22 of the Act. Since delivery of possession was not brought, the same ought not to have granted by the executing court and in granting the same, the court has travelled beyond the decree.
7. For the aforesaid purpose paragraphs 16 and 17 of Adcon Electronic Pvt. Limited (supra) are being quoted here-in-below:
16. In a suit for specific performance of contract for sale of immovable property containing stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs:
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 subsection (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 my be just for including a claim for such relief.
17. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.
8. Unfortunately, for the petitioner no such ground has been taken in the revision filed against an order of the executing court, although the said ground was taken before the executing court. However, the aforesaid proposition is a question of law that can be considered by the revisional court while considering the revision filed by the petitioner.
9. Considering the facts of the case, the writ petition is being disposed of with the observation that the court below on the date fixed, i.e., 25.5.2013 or any other short date the court may fix, would consider the aforesaid revision of the petitioner and pass appropriate orders on the same and till 27.5.2013 the operation of the order of the executing court dated 6.5.2013 shall not be given effect to. Since the order is being passed without issuing notice to the respondents, liberty is granted to them to approach this Court for recalling the aforesaid order in case they have any grievance against the same. With the aforesaid direction, the petition stands finally disposed of.
