IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

Before:

The Hon’ble Justice Hiranmay Bhattacharyya

C.O. 3528 of 2025

Kamala Bhattacharjee & Anr.

VS.

Suman Ganguly & Anr.

For the Petitioners : Mr. Haradhan Banerjee,

Mr. Amitaba Pain,

Mr. Partha Pratim Mukhopadhyay,

Mr. Vivek Tripathi,

Mr. Suresh Kr. Sahoo

….Advocates

For the Opposite Parties : Ms. Shohini Chakraborty,

Mr. Koushik Bhattacharya,

Mr. Suranjan Mondal,

Ms. Gargee Acharya Biswas,

Ms. Moushumi Biswas

…. Advocates

Reserved on : 22.09.2025 Judgment on : 02.12.2025

Hiranmay Bhattacharyya, J.:-

1. This application under Article 227 of the Constitution of India is at the

instance of the Judgment Debtors and is directed against an order being No. 57, dated August 28, 2025 passed by the learned Civil Judge (Senior Division) 1st Court at Barasat in Title Execution Case No. 1 of 2014 arising

out of Title Suit No. 266 of 2011.

2. By the order impugned, the prayer of the decree holders/ opposite parties herein for delivery of khas possession was allowed and the Court bailiff was directed to deliver khas possession of the decretal property to the opposite parties after removing all obstructions within the time limit indicated in the said order.

3. The opposite parties filed a suit for specific performance of contract, declaration, permanent injunction and for delivery of possession being Title Suit No. 266 of 2011 before the learned Civil Judge (Senior Division) 1st Court at Barasat.

4. The said suit was decreed on contest against the petitioners by a judgment and decree dated September 30, 2013. The opposite parties got a decree for specific performance of the agreement for sale dated 24.02.2010 and the opposite parties were directed to deposit with the Court the balance consideration amount and the petitioner was directed to execute a conveyance in terms of the agreement for sale in favour of the opposite parties after withdrawing the balance consideration amount within a specified time limit failing which the decree may be put into execution.

5. Petitioner preferred a First Appeal being FA 11 of 2015 before this Hon’ble Court challenging the aforesaid judgment and decree. The said appeal was dismissed by the Hon’ble Division bench by a judgment and decree dated November 30, 2023.

6. The said decree was put into execution giving rise to Title Execution Case No. 01 of 2014. The sale deed was executed and registered through Court on

17.12.2024 in favour of the opposite parties.

7. The decree holders/opposite parties prayed for delivery of khas possession which was allowed by the impugned order. Being aggrieved, the judgment debtors have approached this Court.

8. Mr. Banerjee, learned advocate for the petitioner submitted that when decree for recovery of possession was prayed for but not granted, such prayer shall be deemed to have been refused in terms of Explanation V to Section 11 of the Code of Civil Procedure. He further contended that when the relief for recovery of possession was not allowed, the order directing issuance of writ of delivery of possession is beyond the jurisdiction of the executing Court as it is well settled that the executing Court cannot go behind the decree. Mr. Banerjee placed reliance upon the decision of the Hon’ble Supreme Court in the case of Desh Raj & Ors. Vs. Rohtash Singh reported at (2023) 3 SCC 714 and Adcon Electronics Pvt. Ltd. vs. Daulet & Another reported at (2001) 7 SCC 698 in support of his contention that writ for delivery of possession could not have been issued unless such relief is specifically granted in a suit for specific performance of contract.

9. Ms. Chakraborty, learned advocate for the opposite party contended that a decree for specific performance of contract includes everything incidental to be done by one party or another to complete the sale transaction. She further contended that even though the decree for specific performance of contract of sale was silent as to the relief of delivery of possession, the executing Court was co