IMPORTANT POINTS
(1) In suit for specific performance, possession is inherent in such suit – Relief of possession is ancillary to decree for specific performance and need not be specifically claimed.
(2) Procedural laws are handmaid of justice and cannot defeat substantive rights.
(3) To examine whether a provision is directory or mandatory, one of tests is that court is required to ascertain real intention of Legislature by carefully attending to whole scheme of Statute.

ORDER :

HEMANT GUPTA, J.

1. The present appeal is directed against an order dated 14.3.2017 passed by the High Court of Judicature at Madras whereby the Execution Petition filed by the appellants-decree holders to seek possession of the property of which sale deed was executed in their favour was found to be not maintainable.

2. The brief facts leading to the present appeal are that the respondent-defendant, as owner of the vacant plot admeasuring 2400 sq. feet, had entered into a sale agreement with the appellants. One of the conditions in the agreement was that the respondent would handover vacant possession of the suit property to the appellants. The relevant clause reads as thus:

“5. WHEREAS the 1st Party handed over all the original title deeds of the schedule property on this day, to the 2nd and 3rd Parties. It has been agreed by the 1st Party that at her costs, she will produce Nil-Encumbrance Certificate before registration, and she will handover vacant possession of the schedule property to the 2nd and 3rd Parties.”

3. The appellants filed a suit seeking specific performance of the said agreement and to direct the respondent herein to execute the sale after receiving the balance sale consideration, failing which the Court may execute the sale deed in favour of the appellants. In the written statement filed, the respondent stated that there cannot be sale of any vacant plot unless the competent authority under the Urban Land Ceiling enactment gives the necessary permission. The respondent admitted the agreement and averred that the appellants had failed to take steps for permission from the competent authority. It was the stand of the respondent that she was pressing for the transaction to be completed but the appellants alone protracted the execution of the sale.

4. In the additional statement filed on 29.3.1985, the respondent pleaded that she sold another plot to one Lakshmipathy in order to discharge the debt of Lakshmipathy. It was pleaded as under:

“2. …But unfortunately the plaintiff who appeared to have had no sufficient sources to complete the transaction caused the delay and as such this defendant sold another plot to the same Lakshmipathy and had to discharge the debt in that manner.”

5. The learned trial court vide order dated 27.11.1985 declined to grant decree for specific performance but granted nominal damages of Rs.5,000/-to the appellants and recovery of the amount deposited. The defendant was given two months’ time to pay the entire amount with interest and cost.

6. The High Court in the first appeal decreed the suit as prayed while setting aside the decree passed by the learned trial court vide judgment dated 23.11.2001. The appellants were given time till 31.1.2002 for depositing the balance sale consideration. An intra-court appeal was preferred by the respondent which was dismissed on 14.9.2006. The Special Leave Petition against the said order was also dismissed on 19.3.2007.

7. The appellants deposited the balance sale consideration but the respondent did not come forward to execute the sale deed. Therefore, the representative of the learned Executing Court i.e., learned Principal Sub Judge, Puducherry executed the sale deed on 26.4.2007. The sale deed had the following assertions:

“NOW by this deed of sale the property fully described in the schedule hereunder is hereby transferred, conveyed and assigned to the purchasers with all privileges, easements and advantages whatsoever to the said property to be occupied and enjoyed with absolute right, title and interest without any claim of demand whatsoever to any one, free from all encumbrances.

THE PURCHASERS shall hereafter peacefully and quietly possess and enjoy the property, described hereunder without any interruption or disturbances whatsoever from the vendors or any person claiming through her.”

8. Thereafter, the appellants filed Execution Petition No. 60 of 2009 for directing the respondent to put the decree-holders in possession of the proper