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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
NUPUR BHATI, J.
Lrs Of Ramji Lal, S/o Sh. Kurda Ram – Appellant
Versus
Narendra Kumar S/o Sh. Jugal Kishore – Respondent
S.B. Civil Writ Petition No. 11815 of 2019
Decided on : 14-12-2023
Specific Performance - Execution Proceedings - Section 47 CPC, Specific Relief Act 1963 - [12, 22(2) of the Specific Relief Act 1963, Section 47 of the Code of Civil Procedure 1908] - The court discussed the applicability of Section 22(2) of the Specific Relief Act 1963 and its interpretation in granting possession in a suit for specific performance. The judgment also referenced Section 47 of the Code of Civil Procedure 1908 and its relevance in raising objections to the execution petition. The court's decision was influenced by the interpretation of these legal provisions and their application to the facts of the case.
Fact of the Case:
The suit for specific performance of an agreement was decreed against the petitioner's deceased father. The respondent filed an execution application seeking relief for specific performance and possession of the land. The petitioner objected under Section 47 CPC, arguing that possession was not decreed in the suit for specific performance.
Finding of the Court:
The court found that the possession of the land in dispute is ancillary to the decree for specific performance and need not be specifically claimed. It also held that the relief of possession can be granted without being specifically prayed for, as per Section 22(2) of the Specific Relief Act 1963. The court concluded that the impugned order did not suffer from any error, illegality, or infirmity warranting interference.
Issues: The issues revolved around the applicability of Section 22(2) of the Specific Relief Act 1963, the interpretation of possession as ancillary to the decree for specific performance, and the objections raised under Section 47 CPC.
Ratio Decidendi: The court's decision was based on the interpretation of Section 22(2) of the Specific Relief Act 1963, which allows the relief of possession to be granted without being specifically claimed. It also considered the objections raised under Section 47 CPC and the ancillary nature of possession to the decree for specific performance.
Final Decision: The writ petition was dismissed, and all pending applications were rejected.
JUDGMENT :
1. The instant writ petition has been preferred by the petitioner under Article 226 and 227 of the Constitution of India with the following prayers:-
ii. That the application filed by the deceased Ramji Lal under 47 C.P.C. (Annexure -4) may kindly be allowed as prayed for.
iii. Any other order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioners.
iv. Cost of the writ petition may kindly be awarded to the petitioners.”
2. Brief facts of the case are that a suit for specific performance of agreement dated 12.11.1990 was filed by respondent no.1 (Annexure-1) for the property Muraba No.35 at Chak 4-U, Aahta No.17 measuring 35 x 60 feet situated at Labour Colony, Faridsar, Tehsil Karanpur wherein the respondent no.1 prayed for execution of the sale deed. The suit for specific performance came to be decreed against the petitioner’s deceased father ie Ramjilal and the decree (Annexure-2) for specific performance was drawn.
3. Thereafter the execution application (Annexure-3) was filed by the respondent No 1 seeking the same relief that was prayed in the plaint regarding specific performance along with an additional prayer of handing over the possession of the land which was not sought by the respondent no 1 in the suit nor was decreed in his favour by the trial court. Thereafter upon the service of notices, the deceased Ram Lal preferred an objection application dated 29.10.2018 (Annexure-4) under section 47 of the Code of Civil Procedure 1908 with the averments that the property in dispute is an ancestral property and thus the execution proceedings cannot be initiated against the deceased Ramjilal and moreover there was no relief sought regarding possession of the property by the respondent No. 1 in the plaint and thus an additional relief regarding possession in the execution application was not maintainable as the suit was of the nature of the specific performance and not a suit for possession of land in dispute.
4. The respondents filed the reply (Annexure-5) to the objection application. Thereafter the court below dismissed the objection application filed by the petitioner vide order dated 16.07.2019 (Annexure-6) The petitioner aggrieved by the order dated 16.07.2019 prefers this writ petition. Hence this writ petition.
5. Learned counsel for the petitioner submitted that the execution court erred in ignoring the importance of omission of a specific plea regarding the relief of granting possession in a suit for specific performance, thus in absence of the same no decree for handing over the possession can be passed. Furthermore he submitted that the execution court erred in ignoring the fact that no relief regarding handing over the possession was ever decreed in favour of the respondent No. 1.
6. Learned counsel for the petitioner also submitted that in the suit of specific performance no such relief was asked by the respondent No. 1 nor any issue was framed nor any decree was drawn hence the order assailed is illegal and unsustainable in the eyes of law hence the same deserves to be quashed and set aside.
7. Learned Counsel for the petitioner also submitted that the disputed property is under the possession of several people claiming to be legal representatives of Ramji Lal (deceased), thus without filing a suit for possession the possession of such persons cannot be disturbed. He further submitted that the execution court erred in ignoring the well settled principle of law that a suit for specific performance is not a suit for possession of land as Section 22 of the Specific Relief Act 1963 categorically bars any Court to grant such relief of possession in a suit for Specific Performance unless specially sought.
8. Learned counsel for the petitio
The main legal point established in the judgment is that the relief of possession can be granted without being specifically claimed in a suit for specific performance, as per Section 22(2) of the Spe....
A decree for specific performance implies an entitlement to possession, even if not explicitly stated, and the executing court must ensure this right is upheld.
(1) In suit for specific performance, possession is inherent in such suit – Relief of possession is ancillary to decree for specific performance and need not be specifically claimed.(2) Procedural la....
Point of law: If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-h....
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