Civil Revision No. 4978 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4978 of 2010 (O&M) Date of decision: 10.08.2010 Vishwa Nath and another ....Petitioners Versus Subhash Chander and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. C.B. Goel, Advocate, and Mr. Sanjiv Gupta, Advocate, for the petitioners. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 30.7.2010 passed by the learned Executing Court, vide which the objections filed by the petitioners to the execution of decree, stand dismissed. The respondent-decree-holders filed a suit for specific performance of agreement to sell executed by the defendant/objectors. The learned trial Court decreed the suit. The appeal filed by the petitioners before the learned District Judge and this also failed. Prior to filing of the appeal, the decree-holders had filed execution application to execute the decree. Keeping in view the stay granted by this Court, the execution application was adjourned sine die with liberty to the parties to get it revived after the decision by this Court. Civil Revision No. 4978 of 2010 (O&M) -2- It is not in dispute, that this Court dismissed the appeal and thereafter Special Leave Petition filed against the judgment and decree was also dismissed. One of the point raised in RSA to challenge the judgment and decree, passed by the learned trial Court was, that the relief of possession would be barred under Order 2 Rule 2 of the Code of Civil Procedure. This Court did not agree with the contention raised and dismissed the appeal, by rejecting the plea taken by the petitioners that the suit was liable to be dismissed as no relief of possession was claimed. When the execution application was revived, the petitioners filed objections, against the execution of decree, again by taking plea, that the relief claimed was barred under Order 2 Rule 2 of the Code of Civil Procedure. Learned Executing Court in view of the decision of this Court specifically rejected the plea under Order 2 Rule 2 of the Code of Civil Procedure. The contention of the learned counsel for the petitioners is that, in absence of decree of possession the decree was not executable and no warrants of possession could be issued in pursuance of the decree for specific performance. At best the decree-holders were entitled to the execution of the sale deed but not possession. This contention of the objector/petitioners was considered by the learned Executing Court and rejected by recording the following findings: - “In view of the above discussed facts and circumstances, it has come on the record that the Civil Revision No. 4978 of 2010 (O&M) -3- J.Ds have contested this litigation up to Hon'ble Supreme Court of India but no judgment favourable to them came out. In the given set of circumstances, as far as the plea of J.Ds regarding possession of suit property is concerned, this court is of the opinion that civil suit bearing No.782 of 1994 titled as Subhash Chand etc. Vs. Vishwa Nath etc. filed by the plaintiffs was decreed vide judgment and decree dated 10.12.1994 in terms of agreement dated 2.9.1982. In the said agreement, it was agreed between the parties that the possession of the suit property will be given to the plaintiff/decree holders. So, the plea of the objector that the relief of possession was not granted to the decree holders way of impugned decree is not sustainable.” The learned counsel for the petitioners in support of the contention that decree for specific performance in absence of relief of possession was not executable, relied upon the judgment of the Hon'ble Supreme Court in Shankar Popat Gaidhani Vs. Hiraman Umaji More (Dead) by Lrs. & Ors., 2003(1) Apex Court Judgments 633, wherein the Hon'ble Supreme Court laid down that when in a decree for specific performance the relief of possession was not granted, High Court could not grant relief of possession, in absence of prayer in this regard. Reliance was also placed on the judgment of the Hon'ble Supreme Court in Adcon Electronics Pvt. Ltd. Vs. Daulat & Anr., 2002 (1) Civil Court Cases 1, wherein again the Hon'ble Supreme Court has laid down, that if the relief of possession is not prayed for, then the Court is not competent to grant the relief of possession. Though the decree granted against the petitioners was not that Civil Revision No. 4978 of 2010 (O&M) -4- of possession, but the contention of the learned counsel for the petitioners is that in view of the law laid down by the Hon'ble Supreme Court, the learned Executing Court cannot grant relief, which could not have been granted by the Court while passing the decree, as the learned Executing Court was bound by the decree and could not go beyond the decree. On consideration, I find no force in the contentions raised by the learned counsel for the petitioners. The decree passed by the learned trial Court was upheld upto the Hon'ble Supreme Court. The interpretation which upholds the decree is to be preferred to the one which defeats the decree. In a given case when a decree for specific performance of agreement, includes in it the decree of possession, in view of covenants of the agreement to sell, the contention raised by the learned counsel for the petitioners cannot be accepted. Therefore, it cannot be said that the learned Executing Court committed any error, as it rightly relied on the stipulations in the agreement, under which the judgment-debtors were bound to hand over the possession at the time of execution of the sale deed. Once the agreement was specifically ordered to be enforced, sale deed is to be executed as per terms agreed to between the parties, which in present case includes handing over of physical possession. No merit. Dismissed. (Vinod K. Sharma) Judge August 10, 2010 R.S.