1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6723 OF 2006 Shri Dattatraya Dagadu Chaskar since deceased by the heirs and legal representatives 1. Shri Shashikant Dattatraya Chaskar and Ors. .... Petitioners. V/s Shri Pandurang Dagadu Padval and Ors. .... Respondents. ----- Mr. S.G. Aney, Senior Counsel i/b Mr. U.B. Nighot for Petitioners. Mr. P.B. Shah for Respondent Nos. 1 to 5. ---- CORAM: V.M. KANADE, J. DATE : 31 st July, 2007 P.C.: 1. Heard the learned Counsel appearing on behalf of Petitioners and the learned Counsel appearing on behalf of Respondents. 2. On the last date, this Court had framed the following question:- Where in a suit which is filed for specific 2 performance a decree is passed in favour of the Plaintiff without there being any specific relief being granted for delivery of possession though a prayer to that effect is made, whether the Plaintiff would be entitled to claim possession of the suit property after the sale deed is executed pursuant to the said decree? 3. Application filed by petitioners, seeking possession of the suit property from respondents - defendants was dismissed by the Trial Court only on the ground that the decree for specific performance having been executed, further application for possession of the suit land was not maintainable as the decree stood satisfied. The learned Counsel appearing on behalf of Petitioners submitted that the said impugned order which is passed by the Executing Court is patently illegal. He has relied upon the judgments of the Apex Court and this Court which are mentioned in para 3 of the order of this Court dated 17th July, 2007 and the said paragraph is reproduced hereinbelow:- “ 3. Mr. Aney, the learned Senior Counsel 3 appearing on behalf of Petitioners, submitted that this question has been answered in affirmative in number of judgments. In support of his submissions, he has relied upon the judgment of Calcutta High Court in Lotu Bandu Sonavane Vs. Pundalik Nimba Koli reported in AIR 1985 Bombay 412, judgment of the Supreme Court in Babu Lal Vs. M/s. Hazari Lal Kishori Lal and others reported in AIR 1982 SC 818 and judgment of Calcutta High Court in Debabrata Tarafder Vs. Biraj Mohan Bardhan reported in AIR 1983 Cal. 51.” 4. The learned Counsel appearing on behalf of respondents - defendants submits that the said judgments of the Apex Court and this Court are not applicable to the facts of the present case. He submits that the land had been declared as surplus land under the provisions of the Urban Land Ceiling Act and, as such, question of granting possession does not arise. 5. In my view, the submission made by the learned Counsel appearing on behalf of respondents- defendants cannot be accepted. In the present case, the Executing 4 Court dismissed the application of the Petitioners only on the ground that the said application is not maintainable in view of the decree having been executed and stood satisfied. In my view, the Executing Court had erred in passing the impugned order in view of the ratio of the judgments on which reliance is placed by the learned Counsel for Petitioners in the case of Debabrata Tarafder (supra). The Apex Court in para 10 of the said judgment has observed as under:- “ 10. The Supreme Court in a recent decision, Babulal v. Hazarilal, AIR 1982 SC 818 in approving the above view, has pointed out that the revised provision of S.22 of the Specific Relief Act, 1963 has not altered the said legal position. A contention similar to the one now raised by Mr. Dasgupta was also raised before the Supreme Court. But such a contention was overruled when the Supreme Court observed (at p.824) : “ 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. 5 This argument ignores the significance of the words ‘in 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 immovable property. That has to be done where circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but 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, the relief of possession being inherent in the relief for specific performance of the contract for sale.” Similarly, in the case of Babu Lal (supra), the Apex court, again, had to consider the expression ‘in appropriate case’ which is found in Section 22(1). The Apex Court has held that even if relief for possession is not asked for in a suit for specific performance, even then if a decree is passed in such 6 a suit, the plaintiff is entitled to possession of the suit land. Further, in the case of Lotu Bandu Sonavane (supra), the learned Single Judge of this Court also has taken a similar view. In view of this settled position in law, submission of the learned Counsel appearing on behalf of respondents cannot be accepted. 6. The impugned order is, therefore, liable to be set aside and it is accordingly quashed and set aside. The Executing Court shall decide the application at Exhibit- 283 afresh on merits and in accordance with law after taking into consideration the objections raised by the respondents herein as expeditiously as possible and, in any case, within a period of two months. Writ Petition is made absolute in the above terms. (V.M. KANADE, J.) 7