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2023 Supreme(Raj) 2203

IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Ganesh Ram Meena, J.
Subhash - Petitioner
Versus
Seva – Respondent
S.B. Civil Writ Petition No. 4982 of 2020
Decided On : 11-07-2023

Advocates:
Advocate Appeared:
For the Petitioner:Mr. Vimal Choudhary, Advocate.

Headnote:(A) Specific Relief Act - Section 22 - Transfer of Property Act - Section 55(1)(f) - Writ petition challenging the deletion of part of the execution order regarding possession of property after a decree for specific performance - Court held that a decree for specific performance includes an implicit right to possession, irrespective of whether it was specifically requested. The Executing Court's withdrawal of the order was unjust and jurisdictionally erroneous, leading to failure of justice. (Paras 2, 10, 15)

(B) Execution of Decree - Court to ensure delivery of possession implicitly conferred by decree for specific performance - Jurisdiction exercised must align with enabling provisions which mandate delivery of possession upon execution of sale deeds resulting from a decree. The Executing Court was mandated to fulfill this obligation. (Paras 10, 13, 16)

Facts of the case:
The plaintiff-decree holder sought specific performance of a sale agreement, which was decreed, but the Executing Court later withdrew the order for delivering possession. The court considered whether this withdrawal failed to meet legal expectations of delivering possession following such a decree.

Findings of Court:
The court concluded that the Executing Court erred by deleting the order for possession, which is an inherent right under a decree for specific performance.

Issues: Does a decree for specific performance automatically entail the right to possession even if not explicitly claimed? Findings must comply with previous legal principles that establish this.

Ratio Decidendi: The court established that a decree for specific performance inherently implies the delivery of possession and the court must ensure compliance with this, regardless of explicit requests.

Result: Writ petition allowed. The impugned order set aside, the Executing Court directed to provide possession to the plaintiff-decree holder.

Table of Content
1. execution proceedings and possession transfer. (Para 1 , 2 , 3 , 4 , 5)
2. rights of decree-holder under specific performance. (Para 6 , 7 , 8)
3. court's obligation to ensure possession delivery. (Para 9 , 10 , 11 , 13 , 14 , 15)
4. writ petition ruling and orders issued. (Para 16 , 17)

ORDER :

Ganesh Ram Meena, J.

The petitioner/ plaintiff-decree holder (for short 'the plaintiff-decree holder') has filed this writ petition being aggrieved by the order dated 12.03.2019 passed by the Court of learned Addl. District Judge, Bansur, District Alwar (for short 'the Executing Court') in Execution No.06/2018 ( Subhash v. Seva ) whereby the Executing Court deleted some part of the order dated 13.02.2019 passed by the Executing Court in regard to the handing over of possession of the land in question to him.

2. The facts borne out from the pleadings and arguments, in brief are that the plaintiff- decree holder filed a suit for specific performance against the respondent/ defendant for compliance of the agreement dated 10.09.2012 and to get the registered sale deed executed before the Sub-Registrar, Bansur. The trial court after issuing notice to the respondent/ defendant and recording the evidence, decreed the suit vide judgment and decree dated 19.08.2017. The gist of the decree is quoted as under:-

^^oknh dk ;g okn izfroknh la[;k 01 ds fo:) ,d i{kh; esa vkaf'kd :i ls fMØh fd;k tkrk gS vkSj vkns'k fn;k tkrk gS fd izfroknh la[;k 01 fu.kZ; fnuakd ls gks ekg ds vUnj bdjkjukek fnukafdr 10-09-2012 dh fofufnZ"V vquikyuk djrs gq;s vkjkth uEcj 155 jdck 01 ,s;j fu"iknu i= djokdj fuoklh xzke gVq.Mh Hkq.Mkoj ftyk vyoj mi iaft;d ckulwj ftyk vyoj] 956 jdck 14 ,s;j] 957 jdck 02 ,s;j] 958 jdck 6-17 ,s;j] 982 jdck 01 ,s;j] 983 jdck 2-94 gsDVs;j] 985 jdck 01 ,s;j] 986 jdck 1-82 gsDVs;j] 989 jdck 2-87 gsDVs;j] 990 jdck 01 ,s;j] 991 jdck 04 ,s;j] 992 jdck 01 ,s;j dqy jdck 14-05 gsDVs;j dk 1@4 Hkkx okds ekStk cqVsjh rglhy ckulwu Hkwfe dk foØ; i= oknh ls 'ks"k jkf'k izkIr dj oknh ds [kpZs ij rgjhj djokdj oknh ds i{k esa fu"ikfnr djs ,oa mi iath;d ckulwj ds le{k mifLFkr gksdj foØz; i= oknh ls 'ks"k jkf'k izkIr dj oknh ds [kpZs ij rgjhj djokdj foØ; i= oknh ds i{k esa fu"ikfnr djs ,oa miiath;d ckulwu ds le{k mifLFkr gksdj foØ; i= rLnhd dj iathd`r djkosA ;fn izfroknh la[;k 1 ,slk ugha djs rks ;fn izfroknh la[;k 1 ,slk djus esa vlQy jgrk gS ,oa O;fDroe djrk gS rks bdjkjukek dh 'krkZsa ds eqrkfcd oknh dks ;g vf/kdkjh gksxk fd og U;k;ky; ds ek/;e ls fooknk/khu Hkwfe dk foØ; i= vius i{k esa fu"ikfnr djokus gsrq vkosnu dj ldsxkA izfroknh la[;k 1 ds fo:) LFkkbZ fu"ks/kkKk bl vk'k; dh tkjh dh tkrh fd og fooknk/khu Hkwfe dks fdlh vU; O;fDr dks jgu] c;] fgck vkfn ls fdlh izdkj vUrfjr ugha djsA [kpkZ i{kdkju viuk&viuk ogu djsaxsA fMØh cukbZ tk;sA [kpkZ i{kdkju viuk&viuk ogu djsaxsA**

3. The plaintiff- decree holder filed Execution No.6/2018 under Order 21, Rule 22 CPC for execution of the judgment and decree dated 19.08.2017. After depositing of the requisite amount the sale deed was got registered under the orders of the trial court and after registration of the sale deed it was placed before the trial court.

4. The plaintiff-decree holder thereafter moved an application for issuing direction to the concerned Tehsildar for mutation and handing over the possession of the land in question to the plaintiff- decree holder. On the application of the plaintiff- decree holder the Executing Court on 13.02.2019 issued direction for mutation of the land in question in favour of the plaintiff- decree holder in the revenue record and also for handing over the possession of the land to him.

5. The Executing Court in view of the report of the Clerk, withdrew and deleted some part of the order dated 13.02.2019 i.e. direction for mutation and handing over the possession of the land in question to the plaintiff- decree holder, vide order dated 12.03.2019.

6. Counsel appearing for the plaintiff- decree holder submits that in a case of decree in favour of the plaintiff in a sui

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