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1981 Supreme(Guj) 124

Gujarat High Court
Judgename :A.P.SEN, R.B.MISRA
BABU LAL - Appellant
Versus
HAZARI LAL KISHORI LAL - Respondent
S.CRI.A. 7771 of 1980
Decided On : 09/02/1981

Advocates Appeared: R.K.JAIN, S.BHANDARI

Headnote:

Code of Civil Procedure ,1908 – Order 2 – Rule 2 - Transfer of Property Act - Section 55 - Specific Relief Act - Section 22 (2) , 26 and 27 - petition is a typical example of the desperate effort of the judgment-debtor to ward off the execution of the decree till the bailiff knocks at the door - Respondents Nos. 6 to 9 entered into an agreement with respondents Nos. 1 to 5 for sale of certain plots situate behind their shop forRespondents Nos. 1 to 5 had paid a sum of Rs. 1 500 as earnest money pursuant to the agreement - Petitioner resisted the claim on the ground that the sale in his favour was in pursuance of a prior agreement - It appears that during the pendency of the suit the petitioner started construction on disputed plot after demolishing the old construction - Plaintiffs therefore filed an application for an injunction restraining the petitioner from making any construction - The petitioner however gave an undertaking that he was making the construction at his own peril and would demolish the construction and restore land to its original position in case the suit of the plaintiffs was decreed - Appeal as well as the revision filed the judgment-debtor were dismissed while the appeal of the decree-holders was allowed and the order of the Courts below was modified to effect that the decree-holders shall be entitled to possession also Judgment-debtor petitioner has now come to this Court to seek permission to file an appeal against the judgment of the High Court – Held, Act 1963 is not an exhaustive enactment and under law relating to specific relief a Court which passes a decree for specific performance retains control over the decree even after the decree had been passed - Therefore the Court in the present case retained control over the matter despite the decree and it was open to the Court when it was alleged that the party moved against had positively refused to complete the contract to entertain the application and order rescission of the decree if allegation was proved - Court should not interfere with the eminently just order of the High Court - High Court had amended the decree passed by the first appellate Court and passed a decree for possession not only against the transferors but also against their transferee that is the petitioner - Difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him - The judgment-debtor tires to thwart the execution by all possible objections - In the circumstances narrated above we do not find any fault with the order passed by the High Court - Petition dismissed.

MISRA, J.

( 1 ) THIS is a petition for special leave to appeal against the judgment and order dated 2nd of Sept. 1981 passed by the High Court of Judicature at Allahabad disposing of execution Second Appeals Nos. 1001 and 1720 of 1977 and Civil Revision No. 1447 of 1978. The petition was heard on 7th of December 1981 at some length and after hearing the counsel for the parties we dismissed the same for reasons to be recorded later. We now proceed to give the reasons.

( 2 ) THE present petition is a typical example of the desperate effort of the judgment-debtor to ward off the execution of the decree till the bailiff knocks at the door. Respondents Nos. 6 to 9 entered into an agreement with respondents Nos. 1 to 5 on 30th of July 1967 for sale of certain plots situate behind their shop for Rs. 15 500 Respondents Nos. 1 to 5 had paid a sum of Rs. 1 500 as earnest money pursuant to the agreement. The sale deed was agreed to be executed within fifteen days of the agreement. Respondents Nos. 6 to 9 however executed a sale deed in favour of the petitioner Babu Lal in respect of the same property for Rs. 20 0 on 7 of August 1967 in defiance of the earlier agreement dated 30th of July 1967 Under the circumstances respondents Nos. 1 to 5 were obliged to file a suit which was later on numbered as suit No. 10 of 1968 in the Court of Civil Judge Aligarh for specific performance of the contract of sale. The petitioner resisted the claim on the ground that the sale in his favour was in pursuance of a prior agreement dated 8th of July 1967 It appears that during the pendency of the suit the petitioner started construction on the disputed plot after demolishing the old construction. The plaintiffs therefore filed an application for an injunction restraining the petitioner from making any construction. The petitioner however gave an undertaking on 25th of March 1968 that he was making the construction at his own peril and would demolish the construction and restore the land to its original position in case the suit of the plaintiffs was decreed. It appears that on the undertaking given by the petitioner the application for injunction was dismissed. The trial Court dismissed the suit but on appeal the Addl. District Judge decreed the suit. In Second Appeal the High Court confirmed the Judgment and decree of the first Appellate Court with a slight modification inasmuch as the High Court directed the petitioner and respondents Nos. 6 to 9 to execute the sale deed in favour of the respondents Nos. 1 to 5 to bring it in line with the decision of the Supreme Court in Lala Durga Prasad v. Lala Deep Chand 1954 SCR 360 wherein it was held: " In a suit instituted by a purchaser against the vendor and a subsequent purchaser for specific performance of the contract of sale if the plaintiff succeeds the proper form of the decree to be passed is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. The petitioner however did not hand over possession and remove construction raised by him despite his undertaking dated 25th of March 68 The decree-holders therefore applied for execution of the decree. The judgment-debtor-petitioner filed an objection under Section 47 Civil P. C. taking all possible pleas to defeat the execution. His objections were threefold: (1) The decree was inexecutable as the decree-holders did note claim a relief for possession in the suit itself and consequently there was no decree for possession. The application for execution by delivery of possession was liable to be dismissed on this score alone in view of Section 22 (2) of the Specific Relief Act. (2) The Urban Land Ceiling Act having come into force it was incumbent on the decree holders to obtain the permission as required under Sections 26 and 27 of that Act and in the absence of any such permission the application for execu
































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