A. S. Srivastava, J. - (1.) BY means of this writ petition the petitioners have prayed for a writ of certiorari quashing the order dated 3-1-1981 of the Additional Civil Judge, Bijnor, rejecting the objection of the petitioners filed under section 47 of the CPC and the order dated 5-9-1981 of the 1st Additional District Judge, Bijnor in Civil Revision No. 20 of 1981, confirming the above order of the Civil Judge.
(2.) THE petitioners are the judgment-debtors of a decree passed against them in Suit No. 51 of 1974 filed by Balbir Singh, respondent no. 1 for specific performance of a contract for sale in respect of certain land. When the petitioners did not comply with the decree of that case, respondent no. 1 Balbir Singh filed an execution application for execution of that decree. THE objection raised by the petitioners before the executing court included, inter-alia, an objection that the decree itself was not executable, inasmuch as the decree-holder had not prayed for possession also as required under section 22 (2) of the Specific Relief Act (hereinafter referred to as the Act). This objection was rejected by the executing court and this order was affirmed by the appellate court also. It is these orders of the executing court and the appellate court which are challenged in this petition. It is contended on behalf of the petitioners that the decree under execution had directed the petitioners to execute a sale deed in respect of only their half share of that disputed land in favour of the decree-holder on receipt of Rs. 2500/- in pursuance of an agreement to sell dated 17-1-1972. Since the decree had directed the execution of a sale deed by the petitioners only in respect of their half share in the disputed land, the decree-holder is not entitled to ask for mere execution of a sale deed without further asking for partition and possession of the petitioners' half share in the disputed land as enjoined by section 22 (2) of the Act and, for that reason, the execution of the decree itself is barred. Apart from challenging this proposition of the petitioners, the decree-holder respondent no. 1 has further urged that he had made a prayer for delivery of possession also in his execution application. After considering the above contention of the petitioners, I find that it is devoid of merit. Section 22 of the Act reads as under :- "22 (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable 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 clause (a) or clause (b) of sub-section (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 clause (d) of subsection (1) shall be without prejudice to its powers to award compensation under section 21."
(3.) I do not agree with the petitioners that the above section has rendered the execution unexecutable merely because the decree-holder has not claimed partition and possession of the judgment debtors' half share in the land in question in respect of which the decree in Suit No. 51 of 1974 has directed him to execute a sale-deed. No doubt after the execution of the sale-deed the decree-holder will have further to seek partition and possession of the land covered by it. But section 22 of the Act does not bar execution of a sale-deed by the judgment-debtor merely because the decree-holder has not prayed partition or possession also along with the prayer for execution of the sale-deed as permitted by section 22 of the Act. This section merely confers a right on a decree-holder to ask for additional reliefs of possession, or partition and separate possession, of the property in the execution proceedings itself though not granted by the decree. It also enables the executing court to grant this additional relief to the decree-holder when asked for, if necessary, by allowing amendment of the plaint in the execution proceedings itself. It has conferred such a power on the executing court notwithstanding any provision to the contrary in the Code of Civil Procedure because under Order 2 Rule 2, CPC such a prayer for possession or partition and possession could not be combined with the relief for specific performance of contract for sale in the suit. The cause of action for claiming possession or partition and possession accrues only after the sale deed is executed and the decree-holder acquires title to the property in his favour. The two reliefs not emanating from the same cause of action could not be combined in the suit itself. Thus in a suit for specific performance of a contract for sale, a relief of possession or partition and separate possession cannot be claimed by the plaintiff having no title over the property in question. That created a difficulty for a decree-holder who, after obtaining a decree in a suit for specific performance of a contract for sale, had to file another suit for possession or partition and separate possession sometimes against third person. It is this difficulty which has been removed by the Legislature in the year 1963 by introducing section 22 in the Act. The object of this section, as pointed out by this Court in Gyasa v. Smt. Risalo, 1976 AWC 758, being only to avoid multiplicity of proceedings by permitting a decree-holder of such a decree to claim possession or partition and possession in execution proceedings itself. This Court has observed as under ;- "A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced It appears that section 22 of the Specific Relief Act was enacted to get over such technical difficulties and to avoid multiplicity of suits." Without section 22 of the Act the right to possession or partition and separate possession accrues in favour of the decree-holder only after the sale-deed is executed in his favour after his suit for specific performance is decreed. But, this section, while permitting such a decree-holder to pray for possession or partition and possession, does not take away his right to claim possession or partition and separate possession subsequently i. e. after the execution of a sale-deed in execution of his decree for specific performance of a contract for sale. That is, this section does not operate as a bar to the execution of a decree directing the judgment-debtor to execute a sale-deed in pursuance of a contract for sale executed by him. This section does not take away the right of the decree-holder to claim possession or partition and possession subsequently i. e. after the execution of sale-deed itself. While considering this section in Babu Lal v. Hazari Lal Kishori Lal, AIR 1982 SC 818 the Supreme Court has further observed that ;- " The Section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the Section recognised in clear terms the well-established rule of procedure that the Court should not entertain a clam: of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of such suits and that the plaintiff may get appropriate relief without being hampered by procedural complications." There is, therefore, no doubt that section 22 of the Act confers a right on a person holding a decree merely for specific performance of a contract of sale to ask for possession or partition and possession also while executing his decree. It also enables the executing court to grant such a relief to the decree-holder in appropriate case when asked for, if necessary, by allowing amendment in the plaint of the suit also, notwithstanding any provision to the contrary in the Civil Procedure Code. But while making these provisions, this section does not create a bar against the execution of a decree for specific performance of a contract of sale where the holder of such a decree does not pray for the relief to which he is entitled to ask for under this section. In such a case, he is only deprived of the advantages conferred by this section. It may also be pointed out that there is still no bar to the respondent no. 1 to ask for the advantages of this section as he can ask for the same at any stage of the execution proceedings and it will be for the executing court to decide whether the same could be granted or not when asked for. However, if the respondent no. 1 does not choose to ask for the same, the petitioners cannot compel him to do so by raising an objection of bar of section 22 of the Act. Therefore, the execution proceedings started by the respondent no. 1 against the petitioners for getting his decree of suit no. 51 of 1974 executed without asking for the benefits contained in section 22 of the Act cannot be dismissed. The objection of the petitioners to this effect was, therefore, rightly over-ruled by the executing court. Consequently, the appellate court was also justified in confirming that order.;