The court has the power to order delivery of possession even in the absence of a specific prayer for recovery of possession in a suit for specific performance, as per the provisions of the Specific Relief Act.

1. The revision petitioner is the plaintiff in O.S.No.304 of 1996 on the file of the Principal District Munsif cum Judicial Magistrate, Chengam.

2. The revision petitioner filed the suit for specific performance of an agreement of sale and also for recovery of possession. The lower Court passed a decree of specific performance by Judgement and Decree dated 29.4.2004. In the decree passed there is no mention about the relief of recovery of possession and the decree only says that the plaintiff is entitled for specific performance of contract. Thereafter, the revision petitioner filed Execution Petition for execution of the sale deed as the defendants failed to execute the sale deed, the sale deed was executed by the Court on 3.1.2007 and registered as Document No.45 of 2007 on 5.1.2007. Thereafter, the revision petitioner filed E.A.No.118 of 2007 for delivery of possession of property and that petition was dismissed and against the same this revision is filed.

3. It is submitted by the learned counsel for the revision petitioner that the Court below erred in dismissing the application for delivery of possession on the ground that the trial Court declined to grant a decree for delivery of possession and in the absence of such decree for delivery of possession, the application is not maintainable. According to the learned counsel for the revision petitioner that in the Judgement reported in AIR 1982 Supreme Court 818 (Babu Lal Vs. M/s. Hazari Lal Kishori Lal) the Honble Supreme Court considered the scope of Sections 21, 22 and 28 of the Specific Relief Act and held that even in the absence of any prayer for recovery of possession, the Court has got power to order delivery of possession though the sale deed was executed pursuant to the decree passed in the suit. He also relied upon the Judgement of this Court reported in 2007 (3) CTC 529 (S.Sampoornam Vs. P.V.Kuppuswamy) wherein this Court considered the same question and after relying upon the Judgement reported in AIR 1982 Supreme Court 818 (Babu Lal Vs. M/s. Hazari Lal Kishori Lal) and other Judgements held that the recovery of possession can be ordered when the suit for specific performance is decreed. He therefore contended that the order of the Court below is liable to be set aside.

4. On the other hand, the learned counsel for the 1st respondent relied upon the Judgement reported in AIR 2001 Supreme Court 3712 (Adcon Electronics Pvt. Ltd., Vs. Daulat and another) and contended that in the absence of any decree for possession the Court below has no power to order delivery of possession of the property and executing the Court cannot go beyond the decree. He further submitted that having specifically prayed for the relief of delivery of possession and the decree is silent about the relief of delivery of possession, it can be presumed that the Court has negatived the relief and therefore without amending the prayer for delivery of possession, the revision petitioner is not entitled to the relief of recovery of possession. He further contended that even as per Section 22 of the Specific Relief Act, the Court has no power to grant the relief of possession unless it has been specifically claimed and when the plaintiff has not claimed any such relief in the plaint, the Court should permit the plaintiff to amend the plaint and thereafter grant the relief of recovery of possession and without amending the prayer for recovery of possession, the plaintiff/ revision petitioner is not entitled to the relief prayed for. He further submitted that in the Judgement of this Court reported in 2007 (3) CTC 529 (S.Sampoornam Vs. P.V.Kuppuswamy) the Court was carried away by the findings of the Judgement in the lower Court wherein it was specifically stated that the suit was decreed as prayed for. In that suit the recovery of possession was prayed for and while drafting the decree that relief was not included and considering the same this Court has granted the relief of recovery of p