- (1.) The following two questions are involved in this revision peti-tion:- i) Whether the plaintiff can ask for possession in execution of a decree, rendered in a suit for specific performance directing the execution of the sale deed even if the relief of possession has not been specifically claimed in the suit and granted by the Court? ii) Whether the judgment in the case of Nathu Ram v. Chhotu Singh, 2013 1 RCR(Civ) 517, relied upon by the petitioner, is per incuriam ? In brief, the petitioner filed a suit for specific performance of an agreement to sell dated 22.04.1999 regarding land measuring 72 kanal 02 marlas and in the alternative for recovery of Rs. 10,34,000/- as double the amount of earnest money and for permanent injunction restraining the defendants from alienating the suit land except to the plaintiff as per the agreement to sell. The suit was decreed on 28.01.2002 in the following terms:- "It is ordered that the suit of the plaintiff is de-creed with costs and defendants are directed to execute the sale deed, failing which plaintiff shall be entitled to get the sale deed executed through process of law." The appeal filed by the defendants was also dismissed on 31.07.2007 in which the following decree was passed:- "It is ordered that the appeal in hand is hereby dismissed with costs." There is no dispute that the Local Commissioner appointed by the Court vide order dated 27.04.2011 executed the sale deed No. 936 dated 09.06.2011 in favour of the plaintiff in the office of the Sub Registrar, Malout. The difficulty of the petitioner started when he filed an application for issuance of warrant of possession alleging that once the sale deed has been registered in his name, he is also entitled to physical possession of the land in dispute. This application was contested by the judgment debtors/respondents on the ground that the plaintiff-petitioner had only prayed in the suit for execution of the sale deed and in the alternative for refund of double the amount of earnest money, but no prayer was made for delivery of possession. It was alleged that in view of Section 22 of the Specific Relief Act, 1963 (here-in-after referred to as the "Act"), the relief of possession is barred until and unless it is specifically claimed in the suit. The learned Executing Court dismissed the application vide its order dated 23.09.2011 which led to the filing of the present revision petition.
(2.) Counsel for the petitioner has argued that once the sale deed has been executed in his favour in terms of the decree passed, he is entitled to possession also even if the decree is silent in this regard as delivery of possession is incidental. He has basically relied upon a decision of this Court in the case of Nathu Ram v. Chhotu Singh, 2012 4 CivCC 184.
(3.) On the other hand, counsel for the respondents has submitted that Section 22 of the Act has not at all been noticed in Nathu Ram's case , therefore, the said judgment is per incuriam and cannot be relied upon.;