Agreement to Sell--Execution of Decree--Execution Court has the jurisdiction to grant the relief of possession in a suit seeking specific performance of a contract

JUDGMENT

Mr. Amol Rattan Singh, J.:- By this petition, the petitioners (legal representatives of the judgment debtor in a decree passed in favour of the respondent herein), challenge the order of the execution Court dated 06.10.2018, allowing the prayer of the decree holder seeking delivery of possession of the suit property. The challenge has arisen out of the fact that though the decree issued by the trial court, holding the plaintiff entitled to execution of the sale deed in his favour, on the basis of an agreement of sale dated 26.12.2002, was a decree that became final upto this Court with the dismissal of the second appeal filed by the petitioners/their predecessor-in-interest (judgment debtor), the decree itself omitted to specifically state that after the execution of the sale deed, possession of the suit property would also be delivered to the decree holder.

However, the contention of the petitioners that therefore possession could not be sought by the decree holder, was rejected vide the impugned order. The learned execution Court referred to Section 28 of the Specific Relief Act 1963 (hereinafter to be referred to as the Act), to hold that sub-section (3) thereof conferred upon the Court the jurisdiction to grant further relief to the decree holder as he may be entitled to, including delivery of possession of the suit property.

While doing so, that Court referred to a judgment of the Supreme Court in Babu Lal v. M/s Hazari Lal Kishori Lal AIR 1982 SC 818, as also judgments of this Court and of the High Court of Telangana and Andhra Pradesh, (as were cited before it on behalf of the decree holder). The judgments cited on behalf of the judgment debtor in State of Punjab v. Som Nath 1992 (2) PLR 654 and Amar Singh v. State of Punjab, [2012(4) Law Herald (P&H) 3718] : 2012 (3) PLR 731, were held inapplicable in the circumstances of the case.

2. Before this Court, Mr. Hemant Bassi, learned counsel for the petitioner, had argued on the first date that the case came up for hearing, that the judgments relied upon by the trial Court were in fact wholly distinguishable on facts, whereas those cited before that Court on behalf of judgment debtor were applicable, and further, in terms of the judgment of the Supreme Court in State Bank of India v. Ram Chandra Dubey AIR 2000 SC 3734, and of the Delhi High Court Dalip Kumar v. UOI and other (WP (C) 916/2012 decided on 06.05.2013), that Court could not pass an order in execution proceedings beyond the decree issued in favour of the decree holder.

Though this Court had at that time also, prima facie, expressed its opinion that even the wording of 28 (3) of the Act would seem to postulate that further relief may be granted as the decree holder may be entitled to, however, for further consideration, the matter was adjourned to 17.10.2018, on which date Mr. Bassi relied upon a judgment of a co-ordinate Bench of the Andhra Pradesh High Court in Balasa Sarada v. Talluri Anasuyamma (deceased by LRs) and ors . 2007 SCC Online AP 69, wherein it was held as follows:-

“9. It appears by relying on the language in the above section, the decree holder made application in the same suit seeking to execute the decree under Section 28 (3) of the Specific Relief Act. The words “same suit” included in the section, enable the party to obtain incidental reliefs in the suit, but not relating to execution of the decree. Therefore, I am of the considered view that the words “same suit” mentioned in Section 28(3) of the Specific Relief Act, do not relate to execution. In the instant case, the trial Court already passed a decree in favour of the petitioner. It is not the case of the petitioner that he is seeking further reliefs under the present I.A. The relief sought in the present I.A., is execution of proper document in favour of the plaintiff. Therefore, Section 28(3) of the Specific Relief Act does not empower the Court to execute the decree. The decree holder has to approach the appropriate Court by fil