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CHHATTISGARH HIGH COURT
Sanjay K. Agrawal, J.
Minashi Sahu – Applicant
versus
N.A. Khan and Ors. – Non-applicants
C.R. No.188 of 2017
Decided on 8.9.2023
For the Applicant:Mr. Vijay Kumar Mishra and Mr. Krishna Kumar Khatri, Advocates
For the Non-applicant No.1:Mr. Amit Soni, Advocate
For the Non-applicant No.7:Mr. K.K.Shrivastava, Advocate
For the Non-applicant No.10:Ms. Nupur Trivedi, Advocate
For the Other Non-applicants: None
IMPORTANT POINTS
(1) Relief of possession is ancillary to decree for specific performance of contract and Executing Court in a decree for specific performance of contract can grant possession to decree holder by virtue of Section 22 of Specific Relief Act, 1963.
(2) Res Judicata – General principles of Section 11 of Code of Civil Procedure apply to execution proceedings as well.
Headnote:
A) Specific Relief Act, 1963 – Section 22 – Civil Procedure Code, 1908 – Order XXI, Rule 97 – Suit for Specific Performance – Grant of alternate relief – In a suit for specific performance of contract for transfer of immovable property, possession is inherent in such decree and decree holder is entitled to possession pursuant to sale deed executed in his favour, though relief of possession was not claimed and granted in suit – Word “proceeding” in Section 22 includes execution proceedings also – Relief of possession is ancillary to decree for specific performance of contract and Executing Court in a decree for specific performance of contract can grant possession to decree holder by virtue of Section 22 of Specific Relief Act, 1963. (Paras 9, 11 and 15)
(B) Civil Procedure Code, 1908 – Section 11 – Res Judicata – General principles of Section 11 of Code of Civil Procedure apply to execution proceedings as well, but basic criteria for applying principles of res judicata is that order must be between same parties and that matter should have been heard and decided by such court. (Para 13)
Result: Civil Revision Petition dismissed.
ORDER (C.A.V.)
The twin questions involved in the civil revision are as under:—
(1) whether the executing court in decree for specific performance of contract of sale grant possession to the decree holder evenwhere the decree so passed is silent qua the decree for possession ?
(2) whether the principles of res judicata enumerated in Section 11 of C.P.C. applies to execution proceeding too and MJC No.51/2003 is barred by that principle ?
2. The aforesaid twin questions arises in the instant revision on the following factual back drop:-
(i) In a suit filed by the decree holder / non-applicant No.1 being civil suit No.22-A/2000 titled as N.A.Khan v. Sadik Ali and 9 others, the trial Court granted a decree for specific performance of contract in favour of non-applicant No.1 herein and against the non-applicant No.2 herein on 31.07.2022 and also ancillary decree was granted against non-applicant No.7 (Fariyad Ali), non-applicant No.8 (Brajesh Kumar Sinha), non-applicant No.9 (Smt. Sangita Singh), non-applicant No.10 (Smt. Rashmi Shrivastava) and non-applicant No.6 (Neeta Thakur). The decree so passed in favour of non-applicant No.1/ decree holder was assailed by the defendant in First Appeal No.148/2002 before this court, which was dismissed by this court by judgment and decree dated 09.09.2002 and thereafter, the SLP preferred by the defendant(s) was also dismissed by the Supreme Court being SLP (Civil) No.7498/2011 on 29.04.2011 and accordingly, the judgment and decree of the trial Court dated 31.07.2002 passed in Civil Suit No.22-A/2000 had become final.
(ii) In the meanwhile, on 06.10.2010, the non-applicant No.1/ decree holder levied an execution before the executing court for execution of decree passed in his favour in Civil Suit No.22-A/2000 for specific performance of contract, in which, the executing court directed for execution of sale deed in his favour and accordingly, sale deed was executed in favour of decree holder on 31.01.2011. Thereafter, on 23.10.2013, an application was filed by the decree holder in said execution case under Order 21 Rule 97 of C.P.C. for removal of resistance/ obstruction to possession of suit property, against which the executing court registered a separate MJC No.51/2013 and separate proceeding was initiated. However, during the pendency and continuance of MJC No.51/2013, the original execution case No.22-A/2000 was dismissed by that Court holding that the decree holder has informed to the executing court that he has obtained possession of the entire suit land (one Acre). As such, the execution case was dismissed on 29.06.2016. However, MJC No.51/2013 was pending, in which notice was issued to the applicant herein (one of the objector) in MJC No.51/2013, which she appeared and filed an application on 25.04.2017 under Order 21 Rule 99 of C.P.C. before the executing court stating that the subject land owned by her and the land owned by the decree holder are quite different and took two specific objection, firstly that in a suit for specific performance of contract, the decree for possession has not been granted in favour of decree holder/ non-applicant No.1 and secondly, since the original execution case No.22-A/2000 had already been dismissed on the statement of the decree holder/non-applicant No.1 that he has obtained the possession of the entire suit land, therefore, the application filed by the decree holder dated 23.10.2013 deserves to be rejected, as barred by principles of res judicata.
(iii) The executing court by its order dated 12.09.2017 rejected the application filed by the objector/applicant herein under Order 21 Rule 97 read with Section 151 of C.P.C. holding that though in a suit, decree granted in favour of non-applicant No.1/ decree holder was only for specific performance of the contract and it was not for the delivery of possession, but since sale deed has been executed in his favour by the court and decree holder has not been placed in possession of entire decreed la
