The relief of possession is inherent in the relief for specific performance of the contract to sell, and the court is empowered and bound to grant such relief even if no specific prayer is made in the plaint or the decree is silent about the delivery of possession.

MANMOHAN SINGH, J.

1. The decree-holder (the then plaintiff) on 10.10.1988 filed the suit bearing No.2524/1988, seeking relief for specific performance of the agreement to sell dated 02.05.1988 entered into between the decree-holder, namely, Adarsh Kaur Gill and the five judgment-debtors (the then defendants), namely, (i) Mawasi, (ii) Smt. Ramkali, (iii) Satpal, (iv) Satbir, and (v) Vijay Pal, in respect of the land comprising in Mustatil No.90, Killa No.11/2, Mustatil No.91, Killa Nos.7/1, 7/2, 14, 17, 15/2 and 16, total admeasuring 17 Bighas and 4½ Biswas, situated within the revenue estate of Village Dera Mandi, Delhi, for a sale consideration of ` 7,20,000/-out of which ` 2,50,000/-were paid at different times. Despite of service, no one appeared on behalf of the judgment-debtors and vide order dated 06.11.1989 they were proceeded ex parte. The Statement of Account and the Certificates from the Bank were filed by the decree-holder which revealed that the decree-holder had necessary funds to perform her part of the contract at the time of institution of the suit as well as on the date of passing of the final order dated 15.11.1990 when the suit of the decree-holder was decreed to the following effect:-

“…….that a decree for specific performance of the agreement of sale dated 02.05.1988 in respect of the land comprising in Mustatil No.90, Killa No.11/2, Mustatil No.91, Killa Nos.7/1, 7/2, 14, 17, 15/2 and 16, total admeasuring 17 Bighas and 4½ Biswas, situated within revenue estate of Village Dera Mandi, in the Union Territory of Delhi, be and the same is hereby passed in favour of the plaintiff against the defendants with the direction that the plaintiff shall deposit the balance sale consideration in Court within two weeks and thereafter the defendants shall take steps in accordance with the agreement of sale for execution and registration of the sale deed within two weeks thereafter, failing which the Registrar of this Court shall take necessary steps in accordance with the law for getting sale deed executed and registered after obtaining legal sanction.”

2. The decree was drawn accordingly by the Registry. The memorandum of costs was also prepared on 31.01.1991. In view of the judgment and decree passed by the Court, the sale deed dated 22.10.1991 was executed by the Registrar of this Court in favour of the decree-holder in respect of the suit property.

3. Thereafter, two of the defendants, namely, Satbir and Vijay Pal (judgment-debtors No.4 & 5) filed an application being I.A. No.9784/1998 for setting-aside the ex parte judgment and decree dated 15.11.1990 along with an application being I.A. No.1398/1999 under Section 5 of the Limitation Act for condonation of delay. However, the same were dismissed vide order dated 07.07.1999. The order passed is reproduced here as below:-

“….. Heard. I.A. No.1398/99 is an application for condonation of delay under Section 5 of the Limitation Act. The case proceeded ex parte against the defendants on 6th November, 1989. It was decreed on 15th November, 1990. The sale deed has already been executed on 8th October, 1991. If it is assumed for the sake of arguments that the defendants were minors on the date of agreement to sell, they were not minors on the date of the decree. They were not minors even when the sale deed was executed. It appears that the defendants purposely avoided and now, at this stage, after nearly seven years the present application for condonation of delay has been filed without explaining the delay. I am not inclined to entertain this application for condonation of delay. Accordingly, the application for condonation of delay (I.A. No.1398/99) is dismissed along with the application for setting aside the decree (I.A. No.9784/88).”

4. Feeling aggrieved by the above said order dated 07.07.1999, the said defendants/judgment-debtors No.4 & 5 in the month of August, 1999 filed an appeal before the Division Bench, being FAO (OS) No.228/1999. On 30.04.2001 the appea