AVADH BEHARI ROHATGI

( 1 ) THE facts of this case need not be recounted in detail. They arc fully set out in my order dated September 30, 1974, made on I A 1706 of 1974. They are also set out in the order of the appellate bench dated October 17, 1974 which heard the appeal against my order.

( 2 ) ON January 18, 1971, the plaintiff brought a suit for specific performance against the defendant. Specific performance was sought in respect of agricultural land measuring 48 bighas and 10 biswas owned by the defendant in vilage Khampur Sub Tehsil Mehrauh. The defendant had agreed to sell the land to the plaintiff. As he did not convey the property the plaintiff brought the suit.

( 3 ) ON November 1, 1973, before T. P. S. Chawla J, the parties reached a compromise. The terms were reduced to writing. The suit was decreed in terms of the compromise.

( 4 ) THE term of the compromise was that the plaintiff will pay Rs. 50,000. 00 over the original agreed price of Rs. 66. 100. 00 which be had already paid to the dcfendant. The total consideration for the property was, therefore, now agreed at Rs. l,16,100. 00.

( 5 ) IN terms of the compromise the plaintiff has deposited Rs. 50,000, in the Reserve Bank of India. But the defendant does not deliver possession of the land agreed to be sold. His principal objection is that there was no claim for possession in the plaint and there is no decree for possession against him. He cannot be asked to deliver possession, it is said.

( 6 ) IN the original plaint the plaintiff claimed that- "a decree directing the sale of the land in his favour be passed against the defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "

CHAWLA J recorded the statements of the parties. Both of them agreed that a decree may be passed in favour of the plaintiff against the defendant. The only essential term of the compromise was, as I have said, that the consideration was Rs. l,16,100. 00 instead of Rs. 66,100. 00. Chawla J. decreed the suit on November 1, 1973, in terms of compromise.

( 7 ) THE plaintiff has now moved an application for the amendment of the original plaint. The following paragraph is sought to be added:

"the plaintiff be also granted a decree "for possession of the suit land and the possession of the same be delivered to him. "

( 8 ) SINCE the relief of possession was not included in the original plaint this is now sought to be added by way of amendment.

( 9 ) THE defendant opposes this application. His objection mainly is this. An application for the amendment of the plaint after the passing of the decree is not maintainable. The court after the passing of thedecree has become functus officio. At the stage of the execution proceedings the plaint cannot be amended. Secondly, since consent decree by way of compromise was passed in the suit the court cannot allow the relief of possession now to the plaintiff as there is no term in the compromise under which the plaintiff can claim the relief of possession.

( 10 ) THE Court certainly is faced with an extraordinary situation. A decree for specific performance has been passed in terms of the prayer in the plaint. There is no decree for possession. The plaintiff seeks possession of the land agreed to be purchased. He cannot have it as the decree is silent on the matter of possession. After the passing of the decree the amendment of the plaint is sought. Has the court power to allow the amendment ? That is the sole question.

( 11 ) SECTION 22 of the Specific Relief Act provides :

"22. (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 case his

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