Birma Devi vs Subhash

Court: Supreme Court
Case type: Special Leave To Petition Civil
Decided on: 06-12-2024

<pre> 1
REPORTABLE 
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
SPECIAL LEAVE PETITION NO. 29397 OF 2024
(@SLP(C.) Diary No(s). 52303 OF 2024)
BIRMA DEVI & ORS. Petitioner(s)
 VERSUS
SUBHASH & ANR. Respondent(s)
O R D E R
 
1. Application seeking permission to file the Special Leave
Petition is granted.
2. Delay condoned.
3. This petition arises from the order passed by the High Court
of Judicature for Rajasthan, Bench at Jaipur in SB Civil Writ
Petition No.4982/2020, by which the High Court allowed the petition
filed by the respondents – herein (original plaintiffs and decree
holders) and set aside the order passed by the Additional District
Judge, Bansur, District Alwar (Rajasthan) in Execution No.06/2018.
4. The facts of this case in brief are that the petitioners–
herein claim to be the subsequent purchasers of the suit property.
The plaintiffs instituted a suit for specific performance of
contract based on an agreement of sale with the original
defendants. The plaintiffs have succeeded in the suit. The Trial
Court passed a decree for specific performance in favour of the
plaintiffs.

2
5. It appears that since the original defendant who had executed
the agreement of sale is no longer interested in the matter as he
seems to have sold the suit property to the petitioners – herein,
there has been no further challenge to the judgment and decree
passed by the Trial Court.
6. However, in the execution proceedings, the executing court
took the view that although there is a decree for specific
performance yet the decree does not say anything as regards putting
the plaintiffs in possession of the suit property.
7. In such circumstances, the executing court declined to
handover the possession of the suit property to the respondents –
herein.
8. The order passed by the executing court came to be challenged
by the respondents – herein - decree holder.
9. The High Court vide order dated 11-7-2023 allowed the petition
in the following terms:-
“14. Considering the view of the Hon'ble Courts in the
cases referred to above, it is very safe to say that in the
case of suit for specific performance even no decree for
possession has been sought and the suit for specific
performance is decreed, the Executing Court is under an
obligation to see that the possession of the suit property
as decreed is handed over to the decree-holder.
15. Taking into consideration the facts and the
circumstances of the case and the view of the Hon'ble
Courts in the cases referred to above, this Court is of the
view that the decree of specific performance and the
resultant execution and registration of the sale deed at
the instance of the Executing court in favour of the
plaintiff-decree holder entailed an implied right of the

3
plaintiff-decree holder to be in possession of the property
so conveyed. Since such a right has been denied by the
impugned order by the Executing Court failing to exercise
its jurisdiction, this Court set asides the impugned order
dated 12.03.2019 passed by the Executing court.
 
16. Resultantly, the writ petition is allowed. The order
dated 12.03.2019 passed by the Executing Court is set aside
and the Executing court is directed to issue a warrant of
possession of the suit property in favour of plaintiff -
decree holder.
17. In view of the order passed in the main petition, the
stay application and pending application/s, if any, also
stand disposed of.”
10. The petitioners – herein who claim to be the subsequent
purchasers of the suit property seek to challenge the order of the
High Court in this petition.
11. We have heard Mr. Jasbir Singh, the learned counsel appearing
for the petitioners and Mr. Ashish Kumar Upadhyay, the learned
counsel appearing for the respondents.
12. The short question that falls for our consideration is whether
the relief of possession may be granted by the executing court in a
case where the suit has been decreed for specific performance
simpliciter and no express relief for the transfer of possession of
the suit property has been granted. 
13. The position of law on the issue has been settled by this
Court in the case of Babu Lal v. Hazari Lal Kishori Lal reported in
(1982) 1 SCC 525 wherein the Court while elaborating on Section 22 

4
of the Specific Relief Act, 1963 laid down the law for the
following two situations that may arise: 
a. First, in cases where the possession of the suit
property is exclusively with the contracting party, then a
decree for specific performance simpliciter, without
specifically providing for delivery of possession, may give
complete relief to the decree holder. This, the Court held,
was in consonance with Section 55(1) of the Transfer of
Property Act, 1882, which binds the seller, on being so
required, to transfer to the buyer or such other person as
he directs, such possession of the property as its nature
admits. 
b. Secondly, in cases where the relief of possession
cannot be effectively granted to the decree-holder without
specifically claiming relief for possession, for instance,
in cases where the property agreed to be conveyed is
jointly held by the defendant with other persons, or cases
where after the contract the property has passed in
possession of a third person, then the plaintiff, in order
to obtain complete and effective relief, must claim the
relief of transfer of possession over the property
defendant along with the relief of partition, etc., if
required. 
14. For the second category of cases, the Court observed that
Section 22, which was introduced by the legislature to avoid
multiplicity of proceedings, allows the plaintiff to amend the
plaint to include a claim for the relief of possession, partition,
etc. at any stage of the proceeding. The Court further held that
the expression “any stage of the proceeding” includes the stage of
execution of the decree by the executing court. The relevant
paragraphs from the said decision are reproduced hereinbelow:

5
“13. 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”. As pointed out earlier, in view of Order 2
Rule 2 of the Code of Civil Procedure, some doubt
was entertained whether the relief for specific
performance and partition and possession could be
combined in one suit; one view being that the cause
of action for claiming relief for partition and
possession could accrue to the plaintiff only after
he acquired title to the property on the execution
of a sale deed in his favour and since the relief
for specific performance of the contract for sale
was not based on the same cause of action as the
relief for partition and possession, the two reliefs
could not be combined in one suit. Similarly, a case
may be visualised where after the contract between
the plaintiff and the defendant the property passed
in possession of a third person. 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 or such a person is not
bound by the contract sought to be enforced. In a
case where exclusive possession is with the
contracting party, a decree for specific performance
of the contract of sale simpliciter, 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 bound 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 Transfer of
Property Act which provides that the seller is bound
to give, on being so required, the buyer or such
person as he directs, such possession of the
property as its nature admits.
14. There may be circumstances in which a relief for
possession cannot be effectively granted to the
decree-holder without specifically claiming relief
for possession viz. where the property agreed to be
conveyed is jointly held by the defendant with other
persons. In such a case the plaintiff in order to
obtain complete and effective relief must claim
partition of the property and possession over the
share of the defendant. It is in such cases that a
relief for possession must be specifically pleaded.
xxx xxx xxx 

6
17. The word “proceeding” is not defined in the Act.
Shorter Oxford Dictionary defines it as “carrying on
of an action at law, a legal action or process, any
act done by authority of a court of law; any step
taken in a cause by either party”. The term
“proceeding” is a very comprehensive term and
generally speaking means a prescribed course of
action for enforcing a legal right. It is not a
technical expression with a definite meaning
attached to it, but one the ambit of whose meaning
will be governed by the statute. It indicates a
prescribed mode in which judicial business is
conducted. The word ‘proceeding’ in Section 22
includes execution proceedings also. In Rameshwar
Nath v. U.P. Union Bank Ltd. [AIR 1956 All 586 :
1956 All LJ 470 : 1956 All WR HC 450] such a view
was taken. It is a term giving the widest freedom to
a court of law so that it may do justice to the
parties in the case. Execution is a stage in the
legal proceedings. It is a step in the judicial
process. It marks a stage in litigation. It is a
step in the ladder. In the journey of litigation
there are various stages. One of them is execution.
xxx xxx xxx 
20. It is thus clear that the legislature has given
ample power to the court to allow amendment of the
plaint at any stage, including the execution
proceedings. In the instant case the High Court
granted the relief of possession and the objection
raised on behalf of the petitioner is that this was
not possible at the execution stage and in any case
the court should have allowed first an amendment in
the plaint and then an opportunity should have been
afforded to the petitioner to file an objection.”
15. The aforesaid position of law has been recently reiterated by
us in a recent order passed in the case of Rohit Kochhar v. Vipul
Infrastructure Developers Ltd. & Ors. reported in 2024 INSC 920
wherein we have observed thus: 
“23. This Court in Babu Lal (supra), upon a combined
reading of Sections 22 and 28(3) of the Specific
Relief Act respectively and Section 55 of the
Transfer of Property Act, observed that the it was
only “in an appropriate case” that the plaintiff was

7
required to separately seek the relief of
possession, partition, or separate possession, as
the case may be, along with the relief of specific
performance. The Court observed that in other cases,
say for example a case where the exclusive
possession of the suit property is with the
contracting party, a decree for specific performance
of the contract of sale simpliciter, without
specifically providing for delivery of possession,
may give complete relief to the decree-holder. This,
the Court observed, was the mandate flowing from
Section 55 of the Transfer of Property Act.”
16. The Special Leave Petition is, accordingly, dismissed.
17. Pending applications, if any, also stand disposed of.
……………………………………….J.
J.B. PARDIWALA.
……………………………………….J.
 R. MAHADEVAN.
NEW DELHI.
6th December, 2024.</pre>