Byway of present petition, the petitioner challenges the order dated 6th November, 2004 passed by the 2nd Joint Civil Judge Senior Division, Dhule below Exhibit 1 in Regular Darkhast No.275/2001, thereby allowing the application of the present respondent for execution of the decree passed in Special Civil Suit No.13/1992.

2. The parties hereinafter would be referred as plaintiff/respondent and defendant/ petitioner.

It appears that the plaintiff/respondent had entered into an agreement of sale with the defendant on 16th December, 1985 for purchase of suit land admeasuring 1 Hactare 31 Rs. situated at village Arvi in block No.4. The defendant/petitioner failed to execute the sale deed. The plaintiff, therefore, issued notice to the defendants. However, on failure to execute the sale deed, the plaintiff/respondent filed Special Civil Suit No.13/1992 for specific performance of contract. The said suit, came to be decreed on 10th December, 1996. Vide the decree in the said suit, the learned trial court had directed appointment of commissioner to execute the sale deed in favour of the decree holder in respect of the suit property. The decree holder was also directed to pay an amount of Rs. 10,000/-.

3. The said judgment and order passed by the learned trial court came to be challenged before the District Court. The said appeal also came to be dismissed by the appellate court and as such, the judgment of the ·lc trial court has achieved finality.

4. Since the defendant failed to execute the sale deed, the plaintiff/respondent c filed a Regular Darkhast for execution of the a sale deed. In the said proceeding, the plaintiff claimed a relief of getting the sale deed executed s and for an order confirming his possession or in the alternative delivery of possession. The said execution proceedings were objected by the defendants-judgment debtors. All the allegations in the Darkhast were denied by the defendants. The learned execution court vide order dated 6th November, 2004 allowed the application for execution as prayed. Hence, this petition has been filed.

5. Shri. Deshpande, learned counsel appearing on behalf of the petitioner submits that the order passed by the learned executing court is without jurisdiction. He submits that in view of Section 22 of the Specific Relief Act, a relief of possession could not be granted unless it is claimed for. He submits that though the court has power to grant amendment for claiming such a relief, unless such a relief is claimed, the court has no jurisdiction to grant such a relief. He relied on the judgment of the Apex Court in the matter of ‘Adcon Electronics Vs. Daulat' reported in 2001 AIR SCW 3534: [2001(4) ALL MR 479 (S.C.)].

6. He further submits that the plaintiff is adopting practice of aprobate and reprobate. He submits that, whereas an earlier suit came to be filed by him bearing R.C.S. No.238/1990 for a relief of perpetual injunction restraining the defendants (present petitioners) from interfering with his possession. He has also now sought a relief of claiming possession. He submits that the suit of the plaintiff i.e. R.C.S. No.238/1990 for injunction has been dismissed and an appeal preferred there against has also been dismissed and has achieved finality. He, therefore, submits that the order passed by the executing court suffers from the vice of jurisdiction and is liable to be set aside.

7. Per contra, Shri. Nimbalkar, learned counsel for the plaintiff submits that the relief of possession is an incidental or ancillary relief to the main relief of specific performance of contract and the executing court would always be competent to grant an ancillary relief of possession while executing the decree for specific performance. He relies on the judgment of the Apex Court in the matter of Babulal V/s. Hajarilal Kishorilal and others AIR 1982 SC 818.

8. Section 22 of the Specific Relief Act, reads thus:"22. Power to grant relief for possession, partition, refund of earnest money etc