The main legal point established is that in a decree for specific performance of contract, the decree holder is entitled to possession of the property even if delivery of possession was not specifically claimed in the original plaint, as it is implicit in the agreement for sale and the decree.

D.G.R. Patnaik, J.

1. Heard counsel for the petitioner.

2. The notices were issued to the respondents both by registered post as well as by ordinary process and later, by way of substituted service, the notices were published in the newspapers but when despite such publication, the respondents did not appear, this case is being heard ex-parte against the respondents.

3. Challenge in this writ application is to the order dated 06.08.2005 passed by the 3rd Additional Munsif, Ranchi in Execution Case No. 38/1998 whereby the petitioner's prayer for deputing Magistrate and police force for affecting delivery of possession of the suit land was rejected.

4. The petitioner as plaintiff, had filed a suit before the court below vide Title Suit No. 109 of 1994 against the respondents/defendants for a decree for specific performance of contract dated 10.08.1992 and for directing the defendants to execute and register the deed of sale in favour of the plaintiff/petitioner and for transferring the suit property in favour of the plaintiff.

5. The defendants/respondents had appeared in the suit and had filed their written statements but later, on their failure to pursue the case, the suit was heard ex-parte and by judgment dated 21.07.1998, the suit was decreed in favour of the plaintiff/petitioner. The plaintiff/petitioner filed an execution case No. 38/1998 for execution of the decree.

6. In compliance with the terms of the decree, the sale deed was executed through the process of court in favour of the plaintiff/decree holder namely the present petitioner. However, despite the execution of the sale deed, the possession of the property was not delivered in his favour. The plaintiff/petitioner thereafter filed an application on 08.06.2005 for issuance of a writ of delivery of possession. The prayer was rejected by the court below on the ground that the petitioner had neither prayed for delivery of possession of the suit land in his original plaint in the title suit and neither did the decree contain any direction for delivery of possession in favour of the plaintiff.

7. The petitioner has assailed the impugned order on the ground that the learned court below has failed to appreciate that even without a formal order of amendment in the plaint in terms of Section 55(1)(f) of the Transfer of Property Act, the court has inherent powers to grant the relief of delivery of possession. The vendor/judgment debtor was obliged to give possession over the property to the vendee/decree holder and such obligation has to be borne by the court if the deed of transfer is executed by the court pursuant to the Specific Performance of Contract Act.

8. From the facts of the case it appears that the prayer for affecting the delivery of the suit property through Magistrate and police force has been rejected only on the ground that the plaintiff/petitioner did not make any such prayer for delivery of possession in his original suit and neither did the decree sought to be executed, contain any such provision for affecting delivery/recovery of possession.

9. The reasons assigned by the learned court below for refusing to accept the petitioner's prayer for delivery of possession appears to be based on the provisions of Sub-sections 1 and 2 of Section 22 of the Specific Relief Act, 1963 which provides that in a suit for specific performance of contract no relief of possession shall be granted by the court unless it has been specifically claimed, though such reliefs, if not claimed in the original plaint, can be introduced by way of amendment in the plaint even at the appellate stage of the suit.

10. In the present case, admittedly the plaint did not contain any specific prayer for delivery/recovery of possession of the suit property nor was such prayer introduced by way of amendment to the plaint.

11. Under such circumstances, the question would be how can the decree passed in a case of specific performance of contract, be satisfied against the judgment debtor ? Is the de