- (1.) This Rule arises on an application under Section 115 of the Code of Civil Procedure and is directed against order No. 65 dated January 12, 1980 passed by Shri S. C. Dutta, Munsif, 3rd court, Baruipore in Miscellaneous Case No. 22 of 1979, arising out of Title Execution Case No. 13 of 1964. The facts of the case may briefly be stated as follows : The predecessor-in-interest of the opposite parties instituted a suit for specific performance of contract for reconveyance against the petitioner being Title Suit No. 65 of 1959. The suit was dismissed. The judgment and decree were set aside by the appellate court and the case was sent back on remand to the trial court Being aggrieved by the aforesaid order of remand the petitioner preferred Second Miscellaneous Appeal in this Court along with an application under Sec. 115 of the Code. As there was no order for stay of further proceedings of the suit by this Court, the suit was decreed exparte after remand on January 30, 1961. The petitioner filed an application for setting aside the exparte decree. The application was dismissed for default. Thereafter, the original plaintiff put the decree for specific performance of contract into execution which gave rise to Title Execution Case No. 13 of 1964. In the Second Miscellaneous. Appeal, the petitioner got an order of stay of all further proceedings of Title Execution Case No. 13 of 1904. The Second Miscellaneous appeal and the alternative application were dismissed. After that the decree-holder proceeded with the execution case. The petitioner filed an application under Section 47 of the Code stating that the application was barred by limitation; that the predecsser-in-interest of the oppsite parties did not pray for recovery of possession in the plaint and no decree for possession was granted. As such, the executing court cannot go behind the decree and the prayer for recovery of possession should be rejected. It was also stated that all the heirs of the deceased plaintiff were not brought on record, the deceased plaintiff having got the decree for simple specific performance of contract and not having prayed recovery of possession, the opposite parties without bringing a fresh suit for recovery of possession cannot get possession in execution of the decree. The Miscellaneous Case came up for hearing on January 12, 1980 and the learned Munsif dismissed the Miscellaneous Case. Being aggrieved, the petitioner has come up to this Court.
(2.) Mr. Bhaskar Bhattacharya, learned Advocate appearing on behalf of the petitioner, submits that the deceased plaintiff having obtained a simple decree for specific performance of contract the learned Munsif acted without jurisdiction in holding that the opposite parries were entitled to get recovery of khas possession in execution of the decree. It is further submitted that the plaintiff did not amend the plaint claiming recovery of possession and as such, the executing court acted without jurisdiction in allowing the opposite parties to get recovery of possession by violating the provisions contained in Section 22 sub-clause (2) of the Specific Relief Act. Next, it is submitted that the learned Munsif acted illegally in the exercise of his jurisdiction in rejecting the petitioner's application under Section 47 of the Code. The Rule was obtained on 31.3.80. It appears from the record that possession was delivered on 27.3.80. It was not stated in the application that possession was already delivered to the opposite parties. A prayer was made for stay of further proceedings of the execution case and ad-interim stay was granted. Mr. Bhattacharya submits that even after possession is delivered. Sec. 47 application can be entertained. In support of his contention, he refers to the decisions, ( B. V. Patankar v. C.G. Sastry, 1961 AIR(SC) 272 ) and (Babu Lal vs. M/s. Hazari Lal Kisori Lal and others, 1982 AIR(SC) 818). On going through the decisions, I agree with Mr. Bhattacharya that even after delivery of possession, Section 47 application is maintainable. The main ground on which Mr. Bhattacharya relies is that after the amendment of Specific Relief Act which came into force from 1.3.64, according to the provisions of Section 22(2) the plaintiff in a suit for specific performance will have to pray for recovery of possession. Admittedly, the suit was filed at a time when the new Act did not come into force. The decree was passed on 30.1.61. Registered deed was executed on 15.3.61. All these happened before the coming into operation of the new Act. The execution case, however, was started on 9.3.64. In the application for execution, the petitioner did not pray for recovery of possession. It was only on 20.1.79 that on the decree holder's prayer they execution petition was amended wherin the decree holder prayed for recovery of possession. The application under Sec. 47 was filed on 15.3.79. Mr. Panda, learned Advocate appearing on behalf of the opposite parties submits that the petitioner did not move against the order by which the execution petition was amended. Long after that on 27.3.80 the possession was delivered. It was true that the petitioner did not come up to this Court against the order allowing the decree holder to amend the execution petition. But, Mr. Bhattacharya submits that it was not at all necessary for him to come against the order by which the execution petition was amended. By amending the execution petition the plaintiff cannot get recovery of possession unless the plaintiff amends the plaint. Because in the present case there is no decree for recovery of possession as there was no prayer in the plaint for recovery of possession. In such circumstances, simply because the decree-holder amended the execution petition and in the said petition prayed for recovery of possession was made the executing court was wrong in allowing the decree-holder to get possession by executing the said decree. Mr. Bhattacharya also submits that any stage of the proceeding referred to in Section 22(2) means that a prayer can be made only upto the appellate stage and not at the execution stage. He, however, is fair to say that three decisions are against him, namely (Mahender Nath Gupta vs. M/s. Moti Ram Rattan Chand and another, 1975 AIR(Del) 155) (M/s. Ex-Servicemen Enterprises (P) Ltd. vs. Suney Sinqh, 1976 AIR(Del) 181). In these cases, it was held that amendment can be made even at the execution stage as execution is definitely a stage in the proceeding. But, in these cases, their Lordships allowed the decree holder to amend the plaint. But, as has been stated already in the present case though the petitioner amended the execution petition, he failed to amend the plaint. As there was no amendment of the plaint there was no prayer for recovery of possession and consequently there was no decree for recovery of possession. That being so, I am in agreement with Mr. Bhattacharya that the executing Court could not allow the decree-holder's prayer for recovery of possession simply because the execution petition was amended. In the result, the application succeeds and the Rule is made absolute. The order passed by the learned Munsif is set aside. The matter is sent back to the learned Munsif who is directed to dispose of the petitioner's application under Section 47 in the light of the observations made above. In doing so, he will also take into consideration the other objections laised by the petitioner in his application under Section 47. Let the order be communicated early. Let the records go down immediately. There will be no order for costs in this Rule.;