2022 (4) TMI 1599 - SC - Indian Laws

Maintainability of execution petition - Seeking possession of the property of which sale deed was executed - HELD THAT - The High Court has completely misdirected itself in accepting the petition Under Article 227 of the Constitution of India and directing the decree-holders to file a suit for possession by misreading the judgments referred to. There was no provision in the Specific Relief Act 1877 corresponding to Section 22 of the Act. Section 22 came to be part of the Act in pursuance of the recommendation of Law Commission in its 9th Report submitted on 19th July 1958. To examine whether a provision is directory or mandatory one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. Keeping in view the scheme of the statute we find that Section 22(2) of the Act is only directory and thus the decree-holder cannot be nonsuited for the reason that such relief was not granted in the decree for specific relief - The Defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression at any stage of proceeding is wide enough to allow the Plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. The judgment debtor in the written statement has admitted that the property is a vacant land and that she has sold other portion in favor of one Lakshmipathy. The stand of the judgment debtor now that the Respondent is in possession of 750 sq. feet would not defeat the right of possession of 2400 sq. feet of an area which she has agreed to sell to the Plaintiffs in respect of which decree was passed. All sales affected and the construction if any raised are subject to lis pendens and no legal or equitable rights arise in favour of the purchasers during the pendency of the proceedings. Therefore the decree-holders are entitled to actual physical possession of 2400 sq. feet of land which was agreed to be sold to the Appellants. The order passed by the High Court is hereby set aside. The Executable Court shall ensure that such decree is executed and if any construction is raised on any part of the land agreed to be sold the possession shall be delivered with or without construction in accordance with law - Appeal allowed.

Summary

Issues Involved:
1. Maintainability of the Execution Petition for possession of the property.
2. Interpretation and application of Section 22 of the Specific Relief Act, 1963.
3. Entitlement to possession in a decree for specific performance.
4. Provisions of the Transfer of Property Act, 1882 relevant to the case.
5. Judicial precedents on the relief of possession in a decree for specific performance.

Detailed Analysis:

1. Maintainability of the Execution Petition for Possession of the Property:
The High Court ruled that the Execution Petition filed by the Appellants to seek possession of the property was not maintainable because no decree was granted for delivery of possession. The High Court relied on the Federal Court judgment in Messrs Moolji Jaitha & Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. and the Supreme Court judgment in Adcon Electronics Pvt. Ltd. v. Daulat and Anr., holding that without a specific claim for delivery of possession in a suit for specific performance, such an order could not be granted.

2. Interpretation and Application of Section 22 of the Specific Relief Act, 1963:
The Supreme Court found that the High Court misdirected itself by not properly interpreting Section 22 of the Specific Relief Act, 1963. Section 22 was introduced to avoid multiplicity of proceedings by allowing a plaintiff to claim possession in a suit for specific performance. The Court emphasized that the relief of possession is ancillary to the decree for specific performance and need not be specifically claimed. The proviso to Section 22(2) allows for amending the plaint to include a claim for possession "at any stage of the proceeding," making the provision directory rather than mandatory.

3. Entitlement to Possession in a Decree for Specific Performance:
The Supreme Court held that the decree-holders are entitled to possession in pursuance of the sale deed executed in their favor. The Court referenced several judicial precedents, including Babu Lal v. Hazari Lal Kishori Lal and Ors., to support the view that the relief of possession is inherent in a decree for specific performance. The Court also noted that procedural laws are intended to facilitate justice and should not defeat substantive rights.

4. Provisions of the Transfer of Property Act, 1882 Relevant to the Case:
The Court referred to Section 28(3) & (4) and Section 55(1)(f) of the Transfer of Property Act, 1882, which support the view that the seller is bound to give possession of the property to the buyer upon execution of the sale deed. These provisions reinforce the plaintiff's right to possession as part of the decree for specific performance.

5. Judicial Precedents on the Relief of Possession in a Decree for Specific Performance:
The judgment discussed various High Court and Supreme Court rulings that have consistently held that the relief of possession is inherent in a decree for specific performance. The Court cited cases such as S.S. Rajabather v. N.A. Sayeed, Gyasa v. Smt. Risalo, Narayana Pillai Krishna Pillai v. Ponnuswami Chettiar Subbalekshmi Ammal, and Debabrata Tarafder v. Biraj Mohan Bardhan to illustrate the established judicial opinion that possession is an integral part of the decree for specific performance.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order. The Executing Court was directed to ensure that the decree is executed, granting the decree-holders actual physical possession of the 2400 sq. feet of land agreed to be sold, with or without any construction, in accordance with the law. The Court emphasized that the procedural requirements should not defeat the substantive rights of the decree-holders to possession of the property.