Execution of Decree--Confirmation of sale cannot be stayed on ground that decree was not passed on merits

JUDGMENT

Mr. Raj Mohan Singh, J.:- Petitioners have challenged the order dated 17.12.2014 passed by Civil Judge (Senior Division), Rewari, whereby two applications filed by the petitioners were dismissed with costs.

2. One application was filed for staying the confirmation of sale under Order 21 Rules 58, 59 read with Sections 141 and 151 CPC. Another application was filed under Section 47 read with Sections 141 and 151 CPC by the LRs of Kishan Lal on the ground that the decree has not been passed on merits.

3. Applications were contested by the decree holder on the ground that the applications were filed to delay the matter and the same were not maintainable. Applicants were stopped by their own act and conduct. Kishan Lal was the judgment debtor. Kaushal Kishore was son of Kishan Lal. Legal heirs of Kishan Lal filed objections on 19.12.2009 which were dismissed by the executing Court on 29.05.2013. The appeal filed by the legal heirs was also dismissed by the Additional District Judge, Rewari on 12.05.2014. Thereafter, vide order dated 30.07.2014, Desh Raj was appointed as Local Commissioner to execute the sale deed in favour of the decree holder. Sale deed No.337 dated 07.08.2014 was executed and registered in favour of the decree holder.

4. Civil Judge (Senior Division), Rewari vide impugned order dated 17.12.2014 found that the suit for specific performance was filed by the plaintiff/decree holder against Kishan Lal on 02.01.1996. Defendant appeared and filed his written statement. After closure of plaintiff’s evidence, defendant availed several opportunities for leading defence evidence, but ultimately, failed to lead any evidence and was proceeded against ex parte vide order dated 22.11.2001. Judgment and decree dated 02.01.2002 was passed by the trial Court, thereby decreeing the suit ex parte against the defendant and directions were issued to the defendant to perform his part of contract by executing the sale deed in favour of the plaintiff/decree holder within three months from the date of passing of judgment and decree after receiving the balance sale consideration.

5. An application under Order 9 Rule 13 CPC was filed by the LRs of Kishan Lal for setting aside the ex parte judgment and decree. The application was dismissed. Thereafter, execution petition was filed by the decree holder on 25.04.2009. Notice of execution petition was given to the judgment debtor who filed objections which were dismissed by the executing Court on 29.05.2013//30.05.2013. The appeal filed against the said order was also dismissed by the Additional District Judge, Rewari on 12.05.2014.

6. Perusal of the impugned order would show that except the factual pleas, no arguments were raised and the executing Court dismissed the applications with costs of Rs.3000/- to be deposited in the Legal Services Fund.

7. I have heard learned counsel for the parties.

8. Learned counsel for the petitioners on the strength of Jeet Singh Vs. Gursewak Singh and others, 2015(3) RCR (Civil) 82 submitted that under Section 22(2) of Specific Relief Act, the execution of a decree cannot be granted unless and until possession is specifically prayed in the suit while seeking the relief of specific performance of contract by way of execution of sale deed. Trial Court cannot grant relief of possession as the same is barred in terms of Section 22(2) of the Specific Relief Act.

9. Perusal of the aforesaid judgment would show that the Court appreciated the cited precedents and held that Nathu Ram Vs. Chhotu Singh, [2012(3) Law Herald (P&H) 2840] : 2013(1) RCR (Civil) 517 is per inquirium as the same was rendered without reference to the provision in terms of Section 22(2) of the Specific Relief Act. The Court while relying upon Adcon Electronics Pvt. Ltd. Vs. Daulat, 2002(1) RCR (Civil) 806 held that the Court cannot grant relief of possession of land or other immoveable property, subject matter of the agreement for sale in regard to which specific performance is claime