Decided on January 29,1982

BABU LAL Appellant


Misra, J. - (1.) This is a petition for special leave to appeal against the judgment and order dated 2nd of Sept., 1981 passed by the High Court of Judicature at Allahabad disposing of Execution Second Appeals Nos. 1001 and 1720 of 1977 and Civil Revision No. 1447 of 1978. The petition was heard on 7th of Dec., 1981 at some length and after hearing the counsel for the parties we dismissed the same for reasons to be recorded later. We now proceed to give the reasons.
(2.) The present petition is a typical example of the desperate effort of the judgment-debtor to ward off the execution of the decree till the bailiff knocks at the door. Respondents Nos. 6 to 9 entered into an agreement with respondents Nos. 1 to 5 on 30th of July. 1967 for sale of certain plots situate behind their shop for Rs. 15,500/-. Respondents Nos. 1 to 5 had paid a sum of Rs. 1,500/ as earnest money pursuant to the agreement. The sale deed was agreed to be executed within fifteen days of the agreement. Respondents Nos. 6 to 9, however, executed a sale deed in favour of the petitioner Babu Lal in respect of the same property for Rs. 20,000/- on 7th of August, 1967 in defiance of the earlier agreement dated 30th of July, 1967. Under the circumstances respondents Nos. 1 to 5 were obliged to file a suit which was later on numbered as suit No. 10 of 1968 in the Court of Civil Judge, Aligarh for specific performance of the contract of sale. The petitioner resisted the claim on the ground that the sale in his favour was in pursuance of a prior agreement dated 8th of July, 1967. It appears that during the pendency of the suit the petitioner started construction on the disputed plot after demolishing the old construction. The plaintiffs, therefore, filed an application for an injunction restraining the petitioner from making any construction. The petitioner,. however, gave an undertaking on 25th of March, 1968 that he was making the construction at his own peril and would demolish the construction and restore the land to its original position in case the suit of the plaintiffs was decreed. It appears that on the undertaking given by the petitioner the application for injunction was dismissed. The trial Court dismissed the suit but on appeal the Addl. District Judge decreed the suit. In Second Appeal the High Court confirmed the judgment and decree of the first Appellate Court with a slight modification inasmuch as the High Court directed the petitioner and respondents Nos. 6 to 9 to execute the sale deed in favour of the respondents Nos. 1 to 5 to bring it in line with the decision of the Supreme Court in Lala Durga Prasad. v. Lala Deep Chand, (1954) SCR 360 wherein it was held: "In a suit instituted by a purchaser against the vendor and a subsequent purchaser for specific performance of the contract of sale. if the plaintiff succeeds, the proper form of the decree to be passed is to direct specific performance of the contract between the vendor and the Plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff." The petitioner, however, did not hand- over possession and remove construction raised, by him despite his undertaking dated 25th of March, 1968. The decree- holders, therefore, applied for execution of the decree. The judgment-debtor-petitioner filed an objection under S. 47, Civil P. C. taking all possible pleas to defeat the execution. His objections were three fold:(1) The decree was inexecutable as the decree-holders did not claim a relief for possession in the suit itself and consequently there was no decree for possession. The application for execution by delivery of possession was liable to be dismissed on this score alone in view of S. 22 (2) of the Specific Relief Act. (2) The Urban Land Ceiling Act having come into force it was incumbent on the decree-holders to obtain the permission as required under Ss. 26 and 27 of that Act and in the absence of any such permission the application for execution was not maintainable. (3) The vendors were not impleaded as parties originally and they were impleaded as parties only after the Court had directed the vendors to execute the sale deed in Second Appeal. As the vendors were not parties in the execution application it was not maintainable and it was not open to the execution Court to implead a person who was not originally impleaded in the application. The execution Court allowed the objection of the judgment-debtor in part inasmuch as it directed the execution of the sale deed in pursuance of the decree. It, however, refused to grant the relief of possession with the observation that the remedy of the decree-holders for possession was by means of a separate suit and not the execution proceedings. The other two objections were, however, overruled. The order of the execution Court was confirmed in appeal by the First Addl. District Judge, Aligarh dated 21st of Feb, 1977. This order gave rise to two appeals, one by the judgment-debtor, being appeal No. 1720 of 1977, and the other by the decree-holders. being execution second appeal No. 1001 of 1977 to the extent the order went against them. There was yet another revision filed by the judgment-debtor-petitioner, being civil revision No. 1447 of 1978 against the order dated 15th of. March, 1978 whereby the judgment-debtor was directed to execute a sale deed in favour of the decree-holder without obtaining permission from the Urban Land Ceiling Authorities under Ss. 26 and 27 of the Act. The appeal as well as the revision filed by the Judgment-debtor were dismissed while the appeal of the decree-holders was allowed and the order of the Courts below was modified to the effect that the decree-holders shall be entitled to possession also. The judgment-debtor-petitioner has now come to this Court to, seek permission to file an appeal against the judgment of the High Court dated 2nd of Sept., 1981.
(3.) Only one contention has been raised on behalf of the petitioner by Mr. Shanti Bhushan, senior counsel, that the High Court could not grant relief in execution application in excess of and outside the framework of the prayer by the plaintiffs in the original main suit. As a second limb to this argument it was further contended that the High Court hag acted in flagrant violation of the provisions of S. 22 of the Specific Relief Act in granting the relief of possession. In substance, the main plank of the contention of the petitioner is based on S. 22 of the Specific Relief Act. As it stands after amendment of 1963, it reads: "22 (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908) any person suing for the. specific performance of a contract for the transfer of immoveable property may, in an appropriate case, ask for- (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under Cl. (a) or Cl. (b) of sub-sec. (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the Court to grant relief under Cl. (b) of sub-section (1) shall be without prejudice to its powers to award compensation under See. 21.";

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