COMMON ORDER:

Since the subject matter and the parties to both the civil revision petitions are common, they are heard and being disposed of together.

The petitioner in both the civil revision petitions is the judgment debtor in O.S.No.7 of 1988 on the file of the learned Senior Civil Judge, Rajam. The suit was filed for specific performance of an agreement of sale. The respondent has subsequently got the plaint amended by including the prayer for recovery of possession as well. However, the trial Court passed decree in favour of the respondent for specific performance of agreement of sale, without reference to the prayer for recovery of possession.

The respondent has filed E.P.No.29 of 2008. The petitioner has filed E.A.No.145 of 2008 under Section 47 of Code of Civil Procedure, 1908 (CPC) to dismiss the execution petition. The said application was dismissed by the Court below by order, dated 26.03.2010. Feeling aggrieved by the said order, the petitioner initially has filed civil miscellaneous appeal, which on objections taken by the respondent, was converted into civil revision petition. In the meantime, the Court below has allowed the execution petition and executed sale deed, as the petitioner failed to come forward to execute the same. By order, dated 29.07.2010, the Court below has ordered delivery of possession. Questioning the said order, the petitioner filed C.R.P.No.3959 of 2010.

At the hearing, Sri D. Ramalinga Swamy, learned counsel for the petitioner, submitted that the Court below has committed a serious jurisdictional error in ordering delivery of possession though a decree granting such a prayer was not passed. The learned counsel submitted that in the absence of passing of a decree for delivery of possession, though such a prayer was specifically sought for, the claim of the respondent for delivery of possession is hit by the provisions of explanations V and VII to Section 11 and also Order II Rule 2 CPC.

Sri V.L.N.G.K. Murthy, learned counsel for the respondent in both the civil revision petitions, while resisting these contentions, submitted that the petitioner failed to raise these pleas in his E.A.No.145 of 2008, which is substantive in nature. The learned counsel submitted that the petitioner having suffered the decree, which received affirmation by this Court and also by the Supreme Court, is not entitled to raise pleas in the civil revision petition filed against order, dated 29.07.2010, having not raised such pleas in his substantive petition filed to dismiss the execution petition (E.A.No.145 of 2008). The learned counsel placed reliance on Major S.S. Khanna v. Brg. F.J. Dillon AIR 1964 SC 497(1) , and Babu Lal v. M/s. Hazari Lal Kishori Lal and others AIR 1982 SC 818 , in support of his plea that the discretionary jurisdiction vested in this Court shall not be exercised in favour of a person, who has lost the litigation lock, stock, and barrel, even assuming that the pleas raised by him contain merit. He further submitted that even if the objections raised by the petitioner are accepted, the same will not put an end to the litigation as his client is entitled to seek correction of the decree by approaching the Court, which passed the decree.

I have carefully considered the submissions of the learned counsel.

Under Explanation V to Section 11 CPC, any relief claimed in the plaint, which is not expressly granted by the decree, for the purposes of Section 11 shall be deemed to have been refused. Explanation VII extended the provisions of Section 11 to a proceeding for execution of the decree as well.

Admittedly, the respondent’s prayer for granting decree for recovery of possession has not been specifically granted. Ordinarily, therefore the provisions of Explanation V r/w Explanation VII would have been attracted to the case on hand.

But the question, which in my opinion is relevant for disposal of these revision petitions, is whether the petitioner having failed to raise these pleas i