ORDER :

1. The petitioner has challenged the order passed by the learned Executing Court i.e. 3rd Additional Motor Accidents Claims Tribunal, Bastar, Jagdalpur whereby the execution proceeding has been closed vide order dated 18.04.2018 holding that the decree of the specific performance of the contract concerning sale deed has been executed however possession of the suit property cannot be handed over as no such relief was claimed by the petitioner herein.

2. Facts of the present case are that the petitioner filed a civil suit No.6A/1995 for specific performance of the contract based on an agreement to sell entered into between the petitioner and Madhusudan Dewangan (deceased) on 03.01.1992 pertaining to land plot survey No.92 plot No. 165 admeasuring 2232 s.f. situated at Kevaramunda, Jagdalpur. The suit was decreed vide judgment and decree dated 04.05.1999 thereafter F.A. No. 425/1999 was preferred before the High Court of Chhattisgarh and same was dismissed on 21.06.2013 and thereafter SLP was preferred before the Hon’ble Supreme Court which was also dismissed vide order dated 21.02.2014. The plaintiff moved an application for execution of the decree before the learned executing Court wherein an application was moved under Order 21 Rule 97, Section 101 read with Section 151 of the CPC by the brother of the defendant and the same was rejected vide order dated 05.03.2016, against that order appeal was preferred and the same was dismissed by this Court vide order dated 13.09.2017. In between an intervention application was moved by Rajesh Dewangan on the ground that the property belongs to him and earlier a suit was filed which travelled up to the High Court in a Second Appeal which was dismissed for want of prosecution. The said Rajesh Dewangan moved an application for restoration of the Second Appeal No.448/1994 before this Court bearing MCC No.844/2017 and the same was dismissed vide order dated 23.02.2018. In pursuance of the judgment and decree sale deed was executed in favour of the petitioner on 22.02.2018 in the execution proceeding, but concerning the possession of the suit property, the learned Court held that from the contents of the agreement, it appears that the original defendant was in possession of 1500 s.f. of the suit property, whereas, his sister-in-law Budhyarin Bai was in possession of remaining part of the suit property and some litigation was going on between them and it was agreed that when lis would be decided between the parties the possession of the property would be handed over to the petitioner.

3. The learned executing Court further held that no relief for possession has been claimed by the petitioner/plaintiff thus no order can be passed and no decree can be executed concerning possession, consequently the learned executing Court closed the execution proceedings.

4. Learned Senior Counsel appearing for the petitioner would submit that in the agreement to sell it was clearly stated that some part of the suit property is in possession of Budhyarinbai and the original defendant was in possession of only 1500 s.f. of land out of 2232 s.f. He would further submit that the original defendant entered into an agreement and the property was in his possession. Later on, the civil suit was decreed in his favour which has been affirmed by the Hon’ble Supreme Court. Some objections were raised by one Rajesh Dewangan on behalf of Budhiyarin Bai, but his application for restoration has been rejected and thus, the claim of Rajesh Dewangan came to an end therefore, the issue which has been discussed and relied on by the learned executing Court is misconceived. He would further submit that the relief of possession is ancillary to the decree of specific performance and may not be specifically claimed. He placed reliance on the matter of Manickram @ Thandapani and another Vs. Vasantha, reported in 2022 LiveLaw (SC) 395.

5. On the other hand, learned counsel for respondent No.2 would submit that in the agreement to sell