MS. ADARSH KAUR GILL vs. SH. MAWASI & OTHERS

.* HIGH COURT OF DELHI: NEW DELHI

Order pronounced on: 02.02.2012

+ EX. P. No.286/2011


MS. ADARSH KAUR GILL ..... Decree Holder
Through Mr. C.A. Sunderam, Sr. Adv. with
Mr. Munindra Dwivedi, Ms. Divya
Bhalla and Mr. Zafar Inayat, Advs.

versus


SH. MAWASI & OTHERS ..... Judgment Debtors
Through Mr. Pramod Ahuja, Adv. with
Dr. Pradeep N. Sharma, Advs. for
J.Ds. No.4 & 5.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The decree-holder (the then plaintiff) on 10.10.1988 filed the suit
bearing No.2524/1988, seeking relief for specific performance of the
agreement to sell dated 02.05.1988 entered into between the decree-holder,
namely, Adarsh Kaur Gill and the five judgment-debtors (the then
defendants), namely, (i) Mawasi, (ii) Smt. Ramkali, (iii) Satpal, (iv) Satbir,
and (v) Vijay Pal, in respect of the land comprising in Mustatil No.90, Killa
No.11/2, Mustatil No.91, Killa Nos.7/1, 7/2, 14, 17, 15/2 and 16, total
admeasuring 17 Bighas and 4½ Biswas, situated within the revenue estate

Ex. P. No.286/2011 Page No.1 of 23


of Village Dera Mandi, Delhi, for a sale consideration of ` 7,20,000/- out
of which ` 2,50,000/- were paid at different times. Despite of service, no
one appeared on behalf of the judgment-debtors and vide order dated
06.11.1989 they were proceeded ex parte. The Statement of Account and
the Certificates from the Bank were filed by the decree-holder which
revealed that the decree-holder had necessary funds to perform her part of
the contract at the time of institution of the suit as well as on the date of
passing of the final order dated 15.11.1990 when the suit of the
decree-holder was decreed to the following effect:-
“…….that a decree for specific performance of the agreement
of sale dated 02.05.1988 in respect of the land comprising in
Mustatil No.90, Killa No.11/2, Mustatil No.91, Killa Nos.7/1,
7/2, 14, 17, 15/2 and 16, total admeasuring 17 Bighas and
4½ Biswas, situated within revenue estate of Village Dera
Mandi, in the Union Territory of Delhi, be and the same is
hereby passed in favour of the plaintiff against the defendants
with the direction that the plaintiff shall deposit the balance
sale consideration in Court within two weeks and thereafter
the defendants shall take steps in accordance with the
agreement of sale for execution and registration of the sale
deed within two weeks thereafter, failing which the Registrar
of this Court shall take necessary steps in accordance with the
law for getting sale deed executed and registered after
obtaining legal sanction.”

2. The decree was drawn accordingly by the Registry. The
memorandum of costs was also prepared on 31.01.1991. In view of the
judgment and decree passed by the Court, the sale deed dated 22.10.1991
was executed by the Registrar of this Court in favour of the decree-holder
in respect of the suit property.

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3. Thereafter, two of the defendants, namely, Satbir and Vijay Pal
(judgment-debtors No.4 & 5) filed an application being I.A. No.9784/1998
for setting-aside the ex parte judgment and decree dated 15.11.1990 along
with an application being I.A. No.1398/1999 under Section 5 of the
Limitation Act for condonation of delay. However, the same were
dismissed vide order dated 07.07.1999. The order passed is reproduced
here as below:-
“….. Heard. I.A. No.1398/99 is an application for
condonation of delay under Section 5 of the Limitation Act.
th
The case proceeded ex parte against the defendants on 6
th
November, 1989. It was decreed on 15 November, 1990.
th
The sale deed has already been executed on 8 October, 1991.
If it is assumed for the sake of arguments that the defendants
were minors on the date of agreement to sell, they were not
minors on the date of the decree. They were not minors even
when the sale deed was executed. It appears that the
defendants purposely avoided and now, at this stage, after
nearly seven years the present application for condonation of
delay has been filed without explaining the delay. I am not
inclined to entertain this application for condonation of delay.
Accordingly, the application for condonation of delay (I.A.
No.1398/99) is dismissed along with the application for setting
aside the decree (I.A. No.9784/88).”

4. Feeling aggrieved by the above said order dated 07.07.1999, the said
defendants/judgment-debtors No.4 & 5 in the month of August, 1999 filed
an appeal before the Division Bench, being FAO(OS) No.228/1999. On
30.04.2001 the appeal was admitted and in the interim application being
C.M. No.2789/1999, the following order was passed:-
“….. Heard. No other or further order is required to be passed
on this application except by directing respondent not to

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transfer, alienate, part with or create any third party interest in
the property in question during pendency of the appeal.
Ordered accordingly…..”

5. Vide order dated 16.08.2011 the appeal filed by judgment-debtors
No.4 & 5 was dismissed by the Division Bench of this Court. The relevant
extract of the said order reads as under:-

Ordered accordingly.”

6. It appears from the above said order that the Division Bench before
dismissing the appeal, also recorded the statements of Satbir and Vijay Pal

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(the then appellants) on the very same date. One of the specimen of the
statements reads as under:-

ON S.A.

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7. It has been informed by the parties that after the dismissal of the
appeal, both the judgment-debtors No.4 & 5 filed a review petition being
R.P. No.755/2011 before the Division Bench. The same was also
dismissed with cost of ` 50,000/-.

8. As already stated that after the execution and registration of the sale
deed dated 22.10.1991 by the Registrar of this Court in respect of the suit
property in favour of the decree-holder, she also filed an application before
the Revenue Assistant for mutation of the suit property in her favour. The
same is still pending adjudication.
9. After the dismissal of the appeal, the decree-holder has now filed the
present execution petition under Order XXI, Rule 11(2) read with
Section 151 CPC for enforcement and execution of the decree dated
15.11.1990, on the grounds that because of the pendency of the proceedings
in respect of the suit land before the Division Bench of this Court and the
status-quo order passed therein, no execution proceedings were filed
earlier. It is also stated that without prejudice, if it is required by the Court
that the plaint be amended to include a specific prayer for possession by
way of abundant caution, the decree-holder also seeks a suitable
amendment of the plaint to incorporate such prayer for possession (as
earlier not sought). It is also averred that in terms of the agreement to sell

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whose specific performance was ordered by this Court, it was incumbent
upon the judgment-debtors to put the decree-holder in possession of the suit
land. Therefore, it is prayed that the plaint and decree be amended to
include the prayer to put the decree-holder in possession of the suit land. It
is further prayed in the execution that the warrants of possession of the
immovable property of land comprising in Mustatil No.90, Killa No.11/2,
Mustatil No.91, Killa Nos.7/1, 7/2, 14, 17, 15/2 and 16, total admeasuring
17 Bighas and 4½ Biswas, situated within the revenue estate of Village
Dera Mandi, Delhi, be issued and in case, this prayer cannot be granted
without amendment of the plaint and the decree, then the following relief
be included as relief No.(a)1 in the plaint:-
“It is most respectfully prayed that the judgment and decree be
passed against the defendants jointly and severally to put the
plaintiff in vacant and peaceful possession of the suit land.”

10. Mr. Sunderam, learned Senior counsel appearing on behalf of the
decree-holder has argued that the alternative prayer has been sought by the
decree-holder only for the purpose of abundant caution, otherwise the
execution qua possession is maintainable, despite having no specific prayer
in the plaint. The learned counsel has further argued that since the suit was
for specific performance of the agreement to sell entered into between the
parties in respect of the land in question and the sale deed was executed
after passing of the decree, the judgment-debtors who are in possession of
the suit property, were duty bound to hand over the possession after
receiving the balance sale consideration which was already deposited by the
decree-holder in the Court. The learned Senior counsel has further

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submitted that after the registration of the sale deed, the next step was to be
performed by the judgment-debtors to hand over the possession. In case
this court feels proper and necessary, the decree be amended on the basis of
the amendment sought in the prayer clause, as the Executing Court has got
the jurisdiction to allow the said amendment.
11. Mr. Pramod Ahuja, Advocate who is appearing on behalf of
judgment-debtors filed the reply supported by the affidavit of Satbir, one of
the judgment-debtors who only executed the vakalatnama in favour of
Mr. Ahuja. The following points have been raised in the reply:-

(i) The amendment sought by the decree-holder cannot be
allowed, otherwise it would be denova trial.
(ii) The execution cannot be entertained, at this stage, for
amendment of the decree dated 15.11.1990 and the same is
liable to be dismissed, as the said amendment has been sought
after a period of more than 20 years.
12. Mr. Ahuja has also argued that the suit filed by the decree holder was
not maintainable, as when the agreement between the parties was entered
into, two of the judgment-debtors, namely Satbir and Vijay Pal were minors
and not competent to enter into any such contract. It was a void agreement
and the same could not be enforced in view of the provisions of Section 11
of the Indian Contract Act, 1872. The learned counsel has further argued
that the judgment-debtors No.4 & 5 are co-bhumidars in the land in
question and the other co-bhumidars could not sell the right, title or interest
therein of the minors by means of the agreement to sell in question.

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13. As far as the first submission of Mr. Ahuja is concerned that on the
date of the agreement in question, his client Satbir was a minor. As per the
Matriculation Certificate of Satbir, his date of birth is recorded as
15.10.1970. Obviously, on the date of passing of the judgment and decree,
i.e. on 15.11.1990, he was about 20 years of age. On the date of
registration of the sale deed, i.e. 22.10.1991, his age was more than 21
years. It is a matter of fact that after passing of the decree, the said Satbir
filed an application before the Court for setting-aside the ex parte judgment
and decree wherein he raised the same objection. The said application was
dismissed vide order dated 07.07.1999 after considering the said objection.
Satbir and Vijay Pal filed an appeal against the said order. Subsequently,
as per orders passed by the Division Bench in the appeal and the statements
of Satbir and Vijay Pal recorded in the Court on 16.08.2011, both the
judgment-debtors admitted before the Division Bench that the appeal,
application, affidavit and vakalatnama did not bear their signatures. In
view of that, in a way, there was no appeal filed on their behalf. It is also
the admitted position that despite of service in the suit, they did not appear
before the Court and they were proceeded ex parte on 06.11.1989. The
same objection after the expiry of more than 22 years cannot be
re-agitated when the same was already determined by the Court. In view of
above said reasons, it is clear that they lost the opportunity after the order
dated 07.07.1999 was passed. Therefore, this objection raised by Satbir is
accordingly rejected.

14. The second point as raised by the objector Satbir is that the execution
filed by the decree-holder is not maintainable, as it has been filed after a
period of more than 20 years. Mr. Ahuja has also referred the judgment

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passed by the Supreme Court in the case of Ram Bachan Rai & Ors. vs.
Ram Udar Rai & Ors. reported in AIR 2006 Supreme Court 2248 , the
relevant para-11 at page 2250 reads as under:-
“11. In view of the said decision, the inevitable conclusion is
that the Executing Court was not correct in its view. It is to be
noted that learned counsel for the respondents conceded to the
position that the period of limitation is not to be reckoned from
the date of dismissal of the Civil Revision which was filed
relating to rejection of the application under Order IX Rule 13,
CPC. The entire focus was on the date from which the period
of limitation is to be reckoned. Reliance was placed on a
decision of the Calcutta High Court in Ram Nath Das and Ors.
v. Saha Chowdhury and Co. Ltd. and Ors. (AIR 1974 Cal 246)
where it was held that the decree was enforceable and when
cost is assessed. The ratio in the said judgment clearly runs
counter to what has been stated in Dr. Chiranji Lal’s case
(supra).”
15. Now, the issue before this Court is, when the period of limitation for
execution would commence. Article 136 of the Indian Evidence
Act, 1872 reads as under:-
(*In terms of order dated 10.02.2012 the Indian Evidence Act, 1872 as referred in para 15 be read as
Limitation Act, 1963.)

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16. In the present case, admittedly, the decree was passed on 15.11.1990.
It is specifically mentioned in the ex parte judgment passed against the
defendants with the direction that the plaintiff (decree-holder herein) would
deposit the balance sale consideration in Court within two weeks and
thereafter, the defendants (judgment-debtors herein) would take steps in
accordance with the agreement of sale for execution and registration of the
sale deed within two weeks, failing which the Registrar of this Court would
take necessary steps in accordance with law for getting the sale deed
executed and registered after obtaining legal sanction. The memo of costs
was prepared in the present suit and was accepted on 31.01.1991. The
decree-holder/plaintiff had deposited bank draft dated 21.11.1990 for the
remaining consideration, in favour of the Registrar General of this Court in
terms of the ex parte judgment and decree. The draft of the sale deed was
submitted by the plaintiff on 29.05.1991. The requisite stamp papers filed
were also taken on record by order dated 24.09.1991. Thereafter, vide
order dated 08.10.1991 the Superintendent of this Court was appointed as
Local Commissioner for execution of the sale deed which was executed and
registered on 22.10.1991.
17. In the present case, it is not disputed that in view of decree passed by
the court, the sale deed was registered on 22.10.1991. The suit was not
restored by the Court, as the application filed by the judgment-debtors also

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stood dismissed on 07.07.1999. The appeal was also dismissed on
16.08.2011. The present execution has been filed in October, 2011, i.e.,
about two months later.
It is also not in dispute that the Division Bench on 30.04.2001, while
admitting the appeal, passed the interim order directing the judgment
debtors not to transfer, alienate, part with or create any third party interest
in the property in question during the pendency of the appeal. Not only that,
on 07.10.2010 further interim order was passed in the appeal to the effect
that no further construction would take place.
Therefore, in case both the interim orders are read together, it is clear
that the judgment-debtors were precluded to part with possession of the suit
property otherwise it would have been breached of the order passed by the
Division Bench. Similarly, by the said orders, the decree-holder was
impliedly asked not to receive the possession.
18. In the case referred by Mr. Ahuja, the facts are different i.e. the suit
was filed for declaration of title and recovery of possession. There was no
stay at any stage, granted by the court and the execution was filed after the
expiry of twelve years. But in the present case, the Appeal Court has
passed the specific order not to part with the possession of the suit property.
Further, in the present case, in terms of decree, the sale deed was already
registered in the name of decree holder in the year 1991 and next steps was
merely to hand over the possession of the suit property which could not be
parted with because of interim orders. Thus, the period, in which the
interim orders were operated against the parties, is to be excluded for the
purpose of limitation. It is also the admitted position that after the

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dismissal of appeal filed by the judgment-debtors, who failed to handover
the possession of the suit property in terms of agreement, the decree-holder
was within her right to file the present execution for the purpose of
remaining in compliance. The objection now raised about limitation is
misconceived and is not tenable to the facts of the present case, as it was an
obligation on the part of the judgment-debtors to deliver the possession in
terms of agreement, in consonance with the provisions of Section 55(1) of
the Transfer of Property Act, 1882 which mandates that the seller to give,
on being so required, to the buyer, the possession of the suit property as its
nature admits. The entire scheme is that it has to be done in order to avoid
multiplicity of proceedings and such duty is to be performed by the party
who is also a party to the agreement, meaning thereby it would be implied.
19. Since, after the dismissal of the appeal, the judgment-debtors did not
come forward to handover the possession, the decree-holder is entitled to
recover the same by filing of execution proceedings. Thus, the decision
referred by the judgment-debtors does not help the case of objector, as the
facts of the present case are materially different.
20. Now, coming to the last submission of Mr. Ahuja that the relief
sought by the decree holder for possession cannot be granted mainly on two
reasons, namely, (a) the plaintiff/decree holder in her plaint did not ask for
such relief; and (b) same has been claimed after the long gap of 20 years
and even amendment sought by the decree-holder in the execution
proceedings cannot be allowed.

21. Admittedly, in the present case, when the suit for specific
performance was filed in the year 1988, no relief for possession asked for.

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A decree for specific performance of the agreement was passed against the
judgment debtors on 15.11.1991. The sale deed was registered on
22.11.1991 in favour of the decree holder.
22. It is settled law that an Executing Court cannot go behind the decree
nor can it question its legality or correctness. But, there is one exception to
this rule that where the decree sought to be executed in nullity for lack of
inherent jurisdiction in the court passing it, its invalidity can be set up in
an execution proceedings. In the present case, there is no such position to
the effect that the decree was passed for lack of inherent jurisdiction.

23. It is also well established law that it may not always be necessary for
the plaintiff to specifically claim possession over the property. The relief
of possession is inherent in the relief for specific performance of the
contract of sale.
24. The proviso to sub section (2) provides for amendment of the plaint
on such terms, as may, for including a claim for such relief at “Any stage of
the proceedings.” The word “proceedings” in Section 22 includes execution
proceedings, meaning thereby, any stage in litigation which can have
various stages. Thus, the Court executing the decree is competent to
deliver the possession. On 01.03.1964, the Specific Relief Act of 1963
came into force and the Act was amended by enacting Section 22 which
makes it mandate for the plaintiff to ask for the relief of possession in suit
for specific performance. In fact, the said provision was enacted in order
to avoid multiplicity of proceedings so that the party may claim a decree
for possession in a suit for specific performance. However, despite of that
the proviso to Section 22 provides power to a court to allow the

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amendment of plaint “at any stage of the proceedings” on such term as may
be just for including a claim for possession where the plaintiff did not
claim such relief in its original plaint.
25. This Court in the case of M/s. Ex-service-men Enterprises (P) Ltd.
vs. Sumey Singh , reported in AIR 1976 Delhi 56 while relying upon the
judgment of the Allahabad High Court in Rameshwar Nath vs. U.P.
Union Bank , reported in AIR 1956 AII 586, has held as under:-
“……the word “proceeding” is a very comprehensive term
meaning generally a prescribed course of action for enforcing
a legal right and the expression “at any stage” in its literal and
actual meaning means without limitation either in frequency or
duration or length of time.”

26. Now the question before this Court is as to whether the decree-holder
asked to amend the plaint or the decree already granted in favour of
decree-holder would imply the decree of delivery of possession also in
view of fact that it would flow from the relief relating to execution of sale
deed. In the present case, admittedly the sale deed has already executed in
favour of the decree-holder after passing the decree.
27. The similar question has arisen in various cases which are referred as
under :
(a) AIR 1987 Rajasthan 117 by Sh. K.S. Lodha, J., in the case of
Hemchand vs. Karilal , the relevant paras of which read as
under:-
“5. Now coming to the other limb, it may again be at once
stated that the contention is ill founded in as much as there
cannot be any reason or justification for the plaintiff asking for
an amendment of the plaint when the relief of possession had

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already been prayed for and as stated above must be deemed to
have been impliedly granted when the decree for specific
performance of the contract has been passed. The matter
stands concluded by their Lordships decision in the aforesaid
case of Babu Lal. It is pertinent to note that before the
provisions of Section 22 of the Specific Relief Act as amended
in 1963 came into force the settled view was that a decree for
specific performance of the contract implied a relief for
possession also. Their Lordships of the Supreme Court have
referred to all the cases which have taken this view and then
they have referred to the amended Section 22 of the Specific
Relief Act in 1963. Their Lordships observed that "Section 22
enacts a rule of pleading. The Legislature thought it will be
useful to introduce a rule that in order to avoid multiplicity of
proceedings the plaintiff may claim a decree for possession in
a suit for specific performance, even though strictly speaking,
the right to possession accrues only when suit for specific
performance is decreed. The legislature has now made a
statutory provision enabling the plaintiff to ask for possession
in the suit for specific performance and empowering the Court
to provide in the decree itself that upon payment by the
plaintiff of the consideration money within the given lime, the
defendant should execute the deed and put the plaintiff in
possession." Their Lordships further observed "the expression
in Sub-section (1) of Section 22 'in an appropriate case' is very
significant. The plaintiff may ask for the relief of possession or
partition or separate possession 'in an appropriate case' and it
has been pointed out that even after the introduction of
Section 22 of the Specific Relief Act in 1963, the plaintiff in a
suit for specific performance of the contract need not always
ask for the relief for possession because ordinarily such relief
would be implied. It is only in appropriate cases that is cases
in which ordinarily possession may not follow from the mere
decree for specific performance of the contract e.g. where third
party has intervened the plaintiff has to ask for the relief of
possession and if not asked, the decree will not grant him
possession. Their Lordships further observed "in a case where
exclusive possession is with the contracting party, a decree for

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specific performance of the contract of sale simplicitor without
specifically providing for delivery of possession, may give
complete relief to the decree-holder. In order to satisfy the
decree against him completely he is hound not only to execute
the sale-deed but also to put the property in possession of the
decree holder. This is in consonance with the provisions of
Section 55(1) of the T. P. Act which provides that the seller is
hound to give, on being so required, the buyer or such person
as he directs, such possession of the property as its nature
admits. "Then their Lordships referred to the other kind of
cases in which a relief for possession cannot be effectively
granted to the decree-holder without specifically claiming
relief for possession, namely, where the property agreed to be
conveyed is jointly held by the defendant with other persons.
In such a case the plaintiff has to pray for partition of the
property and possession over the share of the defendant, and it
has been observed that it is in such eases that a relief for
possession must be specifically pleaded. Again it is observed
"the contention on behalf of the petitioner is that the relief for
possession must be claimed in a suit for specific performance
of a contract in all cases. This argument ignores the
significance of the words 'in an appropriate case'. The
expression only indicates that it is not always incumbent on
the plaintiff to claim possession or partition or separate
possession in a suit for specific performance of a contract for
the transfer of the immovable properly. That has to be done
where the circumstances demanding the relief for specific
performance of the contract of sale embraced within its ambit
not only the execution of the sale deed hut also possession
over the property conveyed under the sale deed. It may not
always be necessary for the plaintiff to specifically claim
possession over the property with the relief for specific
performance of the contract of sale. It is, therefore, abundantly
clear that ordinarily the relief for specific performance of a
contract implies the relief for possession of the immoveable
property also and in such a case the plaintiff need not even ask
for the decree for possession and as soon as a decree for
specific performance of the contract is passed the plaintiff

Ex. P. No.286/2011 Page No.17 of 23

(b) AIR 2007 Andhra Pradesh 35 by Sh. P.S. Narayana, J., in the
case of Smt. Suluguru Vijaya & Ors. vs. Pulumati
Manjula , the relevant paras of which read as under:-
“9. ……..In S.S. Rajabathar v. N.A. Sayeed , AIR 1974
Madras 289 it was held that where a suit for specific
performance of a contract of sale had been decreed, the
executing Court while executing the decree, can direct delivery
of possession in the absence of a specific direction to that
effect in the decree. The view expressed in Brij Mohan
Matulal v. Mt. Chandrabhagabai , AIR 1948 Nag 406 was
dissented from. In Mahender Nath Gupta v. Moti Ram

Ex. P. No.286/2011 Page No.18 of 23

10. In the light of the statutory duties and obligations cast
on the seller by virtue of Section 55 of the Transfer of Property
Act, 1882, and also in the light of the scope and ambit of
Section 22 of the Specific Relief Act, 1963, this Court is of the
considered opinion that when there is no dispute or
controversy that the judgment debtors-defendants are in
possession of the property, the mere fact that such specific
prayer was not made, the same cannot be taken advantage of
principally for the reason the decree for execution of sale deed
would imply the decree of delivery of possession too inasmuch
as these are the obligations which would flow from the relief

Ex. P. No.286/2011 Page No.19 of 23

(c) The Supreme Court in the case of Babu Lal vs. Hazari Lal
Kishori Lal , reported in (1982) 1 SCC 525 made the
following observations:

“Specific Relief Act, 1963 (47 of 1963) – Section 22 – In
appropriate cases of specific performance of contract of sale of
immovable property, held, court competent to order delivery
of possession of the property, even if not specifically asked
for, by allowing suitable amendment in the plaint Order for
delivery of possession without corresponding amendment in
the plaint would be a mere omission, not fatal to the relief of
possession, especially when the order made in furtherance of
cause of justice and in view of applicability of Section 28(3)
Expressions "in an appropriate case" in Section 22(1) and "at
any stage of the proceeding" in proviso to Section 22(2) .
It may not always be necessary for the plaintiff to
specifically claim possession over the property, the relief of
possession being inherent in the relief for specific performance
of the contract of sale. In a case where exclusive possession is
with the contracting party, a decree for specific performance of
the contract of sale simplicitor, without specifically providing
for delivery of possession, may give complete relief to the
decree-holder in order to satisfy the decree to put the property
in possession of the decree-holder. This is in consonance with
the provisions of Section 55(1) of the Transfer of Property
Act.
21. If once we accept the legal position that neither a
contract for sale nor a decree passed on that basis for specific
performance of the contract gives any right or title to the
decree-holder and the right and the title passes to him only on

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the execution of the deed of sale either by the judgment-debtor
himself or by the court itself in case he fails to execute the sale
deed, it is idle to contend that a valuable right had accrued to
the petitioner merely because a decree has been passed for the
specific performance of the contract. The limitation would
start against the decree-holders only after they had obtained a
sale in respect of the disputed property. It is, therefore,
difficult to accept that a valuable right had accrued to the
judgment-debtor by lapse of time. Section 22 has been enacted
only for the purpose of avoiding multiplicity of proceedings
which the law courts always abhor.
23. There has been a protracted litigation and it has dragged on
practically for about 13 years and it will be really a travesty of
justice to ask the decree-holder to file a separate suit for
possession. The objection of the petitioner is hyper-technical.
The Executing Court has every jurisdiction to allow the
amendment. The only difficulty is that instead of granting a
relief of possession the High Court should have allowed an
amendment in the plaint. The mere omission of the High Court
to allow an amendment in the plaint is not so fatal as to
deprive the decree-holder of the benefits of the decree when
Section 55 of the Transfer of Property Act authorizes the
transferee to get possession in pursuance of a sale deed.”

28. After having considered the abovementioned judgments, it is very
clear that the grant of relief for delivery of possession is just a formality and
even though, no specific prayer is made in the plaint and even the decree is
silent about the delivery of possession, the Executing Court is empowered
and bound to grant such relief. If I go through the judgments referred
above, it is not even necessary to amend the plaint, as it is the admitted
position in the present case that the sale deed in terms of the decree has
already been executed in favour of the decree-holder and there is no
involvement of the third party regarding the possession. This fact has not

Ex. P. No.286/2011 Page No.21 of 23


been controverted by the judgment-debtors in the pleadings also as status-
quo orders passed by this Court till the disposal of the appeal. Thus, it is
clear that the possession was with the judgment-debtors. Therefore, the
facts of the cases directly apply to the facts and circumstances of the
present case. However, since the objection is raised by the judgment-
debtors and the decree-holder has also sought amendment of the plaint for
including the relief for possession of the property in question, coupled with
the fact that a conflicting view has been taken by the Courts in some of the
cases and the proviso to sub-section (2) of Section 22 of the Specific Relief
Act, 1963 allows the plaintiff who has not claimed any such relief provided
by Clauses (a) or (b) of sub-section (1) of Section 22 to amend the plaint
for including a claim for recovery of possession. The amendment, under
these circumstances, can be allowed at any stage of proceedings including
the execution proceedings.
29. Under these circumstances, the prayer made by the decree-holder for
amendment of the plaint has to be granted, even though such amendment
was not necessary. Ordered accordingly and consequent thereto, the decree
is also amended.
30. Under Order VII, Rule 7 of CPC, it is provided that it shall not be
necessary to ask for general or other relief which may always be given as
the court may think just to the same extent as if it had been asked for. It is
settled law that relief to be provided by the court is to be based on the
pleadings of the plaintiff.

Ex. P. No.286/2011 Page No.22 of 23


31. This Court is of the considered view that the relief of possession is
ancillary and it springs out and is comprised in the relief to that for the
specific performance of the contract to sell.
32. In view of the reasons stated earlier, there is no impediment for the
Court to grant the relief claimed in the execution proceedings. The
judgment-debtors are, however, entitled to receive the balance sale
consideration which has been deposited by the decree-holder with this
Court. As it is now incumbent upon the judgment-debtors to put the
decree-holder in possession of the suit property in view of the amendment
in the plaint and the decree which include the relief of possession also.

33. Hence, it is directed that the warrants of possession qua the
immovable property, i.e. land comprising in Mustatil No.90, Killa No.11/2,
Mustatil No.91, Killa Nos.7/1, 7/2, 14, 17, 15/2 and 16, total admeasuring
17 Bighas and 4½ Biswas, situated within the revenue estate of Village
Dera Mandi, Delhi, be issued for grant of peaceful and vacant possession
thereof to the decree-holder through Bailiff to be appointed by the
concerned Court. The Bailiff is also authorized to take the police
assistance if necessary to ensure the compliance of the direction. The
decree holder would take necessary steps by filing of process fee and to
deposit other requisite charges. The execution petition is accordingly
disposed of.

MANMOHAN SINGH, J.
FEBRUARY 02, 2012/ka

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