JUDGMENT :

1. The aforesaid Writ Petitions are being disposed of by this common order, as the issue involved in both the cases is similar.

WP227 No. 828 of 2022

2. This Petition has been preferred challenging the order dated 21.11.2022 passed by the Executing Court i.e. 6th Additional District Judge, Durg, in Execution Case No.43/2021 (Sunil Kumar Jain Vs. M/s Guru Engineering Works) whereby the objection raised by the petitioner/defendant for execution of the decree was rejected and decree holder/respondent/plaintiff was allowed to amend the execution for relief of possession in the execution application.

3. Facts of the case are that the respondent/plaintiff has filed a civil suit for specific performance of agreement to sell dated 21st October, 2010 and the said suit was decreed in favour of the plaintiff in Civil Suit No.46- A/2014 by 7th Additional District Judge, Durg vide judgment dated 26th October, 2016, which was affirmed in FA No.378/2016 vide judgment dated 30th August, 2019. The petitioner/judgment debtor has also challenged the judgment rendered in First Appeal before the Hon’ble Supreme Court vide SLP (Civil) Diary No(s).22330/2020 and the Hon’ble Supreme Court vide order dated 13th January, 2021 dismissed the SLP. Thereafter when the respondent/plaintiff/decree holder proceeded for execution, the petitioner/defendant has raised an objection that in the impugned decree, there is no direction for handing over the possession of the suit property and the respondent/plaintiff, in such circumstances, has also moved an application for amendment in 3 execution to add the relief which has been allowed by the impugned order.

WP227 No. 831 of 2022

4. Facts in the present case are almost similar. In the present case, the respondent/plaintiff/decree holder has filed an application under Order 6 Rule 17 read with Section 151 of the CPC claiming that in the execution application, relief of possession be added. Learned 6th Additional District Judge, Durg vide impugned order has allowed the application filed under Order 6 Rule 17 of the CPC against which the present Writ Petition has been filed.

5. Shri Sharma, learned counsel for the petitioner would submit that it is well settled legal proposition that the Executing Court cannot go behind the decree and further, if any relief is sought in the plaint/decree and has not been granted in the final judgment and decree, then the Executing Court cannot extend the benefit, which has not been granted under the decree. Learned counsel would further submit that during the pendency of the suit, the nature of the suit property has been changed and on the vacant land of the suit property, a go-down has been constructed by the defendant and no relief has been claimed for removal of the construction. Learned counsel would place reliance on the judgment of the Hon’ble Supreme Court in the matter of Adcon Electronics Pvt. Ltd. Vs. Daulat and Another, (2001) 7 SCC 698 and would refer paragraphs 16 & 17 which read thus:-

“16. In a suit for specific performance of contract for sale of immovable property containing a 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