IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 CRP.No. 155 of 2009 ----------------------------- OS.NO.152/1996 OF PRL.MUNSIFF COURT, KASARAGOD. .................... REVISION PETITIONER/ 2ND RESPONDENT: --------------------------------------------------------------- T.M.SHAFI, AGED 49 YEARS, S/O.MOHAMMED, MUSLIM, KOMBAMPARA, KALANAD VILLAGE, KASARAGOD TALUK AND DISTRICT-1, P.O.KALNAD. BY ADV. MR.KODOTH SREEDHARAN. RESPONDENTS/ PETITIONER AND RESPONDENT: ------------------------------------------------------------------------ 1. C.L.KHADERKUNHI, AGED 55 YEARS, S/O.MOHAMMED, MUSLIM, LANDHOLDER, R/AT DESHYATH OF CHEMMANAD VILLAGE & POST, KASARAGOD TALUK & DISTRICT. 2. N.BABU, AGED 61 YEARS, S/O.CHOMA, RESIDING AT PUTHARIYADUKAM, THEKKIL VILLAGE & POST, KASARAGOD TALUK AND DISTRICT. R1 BY ADVS. MR.V.V.ASOKAN, SMT.S.AMINA. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON 03/08/2009 PASSED THE FOLLOWING: C.R.P. NO. 155/2009-B: ORDER ON I.A. NO. 543/2009 IN C.R.P. NO. 155/2009-B CLOSED 03/08/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.155 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 3rd August, 2009 ORDER The revision under Section 115 of the C.P.C. has been filed against the order in an execution proceedings passed by the learned Principal Munsiff, Kasaragod. 2. Short facts giving rise to the revision are thus: The revision petitioner was the 2nd defendant in O.S.No.152/96 on the file of the Munsiff Court, Kasaragod. Suit was one for specific performance of an agreement for sale. The first respondent was the plaintiff and the suit was filed to seek enforcement of an agreement for sale over the suit property having an extent of 37 cents, executed by the second respondent. On agreement of sale, he was put in possession of the property, but despite payment of the major portion of the sale price and his readiness and willing to pay the balance amount, the 2nd respondent committed breach of contract by executing a sale deed over the property in favour of the 2nd defendant in the suit, the present revision petitioner, was the case advanced by the first respondent/plaintiff. The defendants in the suit including the revision petitioner filed written statements, and resisted the suit claim. The second defendant/revision petitioner contended that he was a CRP No.155/09 - 2 - bonafide purchaser of the property. The trial court upholding the contentions raised by the defendants dismissed the suit against which the first respondent preferred an appeal, which was allowed granting a decree in his favour. The revision petitioner/2nd defendant has filed a Second Appeal with a petition for condonation of delay and it is stated to be pending consideration. Meanwhile, the first respondent, on default of the second respondent/1st defendant in the suit to execute a sale deed as mandated under the decree got the registration of the sale deed conveying the right over the property in his favour through the court. Alleging subsequent trespass, after passing of the decree, by the revision petitioner/the 2nd defendant, he filed a petition before the execution court to put him in possession of the property through court. Petitioner, in response to the notice received from the execution court, filed objections to the executability of the decree contending that there was no decision for possession of the property, but only for enforcement of the agreement for sale by execution of the sale deed conveying the property by the second respondent/first defendant in the suit. The learned Munsiff negatived the objections raised by the petitioner, passed the impugned order dated 4th February, 2009, and, its correctness and propriety is impeached in the present revision petition. CRP No.155/09 - 3 - 3. Before pressing into service the challenge against the executability of the decree, on the grounds canvassed as above, the revision petitioner/2nd defendant in the suit had filed a petition under Order 21 Rule 97 C.P.C. setting up of a case that he has independent title and right over the property covered by the decree. The claim raised under that petition was dismissed, against which a Writ Petition was filed before this court as W.P.C.No.30265/08, which was disposed by judgment dated 14.11.2008. The judgment rendered by this court enables the revision petitioner to challenge the executability of the decree on the ground raised that no decree for possession was passed in the suit, but only a decree for specific performance of the agreement for sale by execution of a registered sale deed by the first defendant in the suit, is the further case of the petitioner. As a bonafide purchaser of property under a sale deed registered before the institution of the suit, he obtained possession over the property and as no decree had been passed by the court in the suit against him in execution of the decree thereof, the revision petitioner cannot be divested of the possession of the property was the challenge pressed into service, which was negatived by the execution court under the impugned order. 4. I heard the learned counsel on both sides. CRP No.155/09 - 4 - 5. Learned counsel for the petitioner impeaching the order of the court below contended that prior to the institution of the suit the petitioner had obtained valid possession over the property by virtue of transfer of title and possession over the property in his favour by a registered sale deed, and as the decree passed in the suit was only for specific performance of the agreement for sale binding the first defendant alone in the suit with no decree against the revision petitioner, the application moved by him resisting the execution of the decree was proper, valid and correct and it should have been treated as an obstruction to the delivery of possession on the basis of his independent right, title and possession over the property. An enquiry on the petition as contemplated under Order 21 Rule 35 of the C.P.C. was warranted in the case, but that was not followed by the execution court, according to the learned counsel. Placing reliance in Bhanwar Lal v. Satyanarain [(1995) 1 S.C.C. 6] it is submitted by the learned counsel the entitlement of the first respondent to get delivery of the property on the basis of the decree passed against the first defendant, which was limited to the execution of the registered sale deed in terms of the agreement for sale, was required to be examined by the executing court with reference to the claim raised by the petitioner setting up of an independent title, right and CRP No.155/09 - 5 - possession over the property and a definite finding on that point, after adjudication of that dispute, should have been entered into, before passing of any order for delivery of the property to the first respondent. The impugned order passed by the court below suffers from serious jurisdictional infirmity is the submission of the learned counsel warranting interference and reversal of that order invoking the supervisory jurisdiction vested with this court. On the other hand, learned counsel for the first respondent submitted there is no merit in the challenges raised against the order of the execution court as the revision petitioner who was a defendant in the suit was bound by the decree passed and he cannot resist the execution of the decree advancing a case that his claim has to be adjudicated as under Order 21 Rule 97 of the C.P.C. Previously he had moved such an application before the execution court and the dismissal of that petition was upheld by this court also in the previous Writ Petition moved by him. The judgment passed by this court disposing that Writ Petition in no way conveyed any better right on the revision petitioner than what is available to him under law and as a party bound by the decree passed in the suit in execution of that decree, he cannot set up an independent claim of title, right or possession over the suit property, submits the learned counsel urging for dismissing the revision as CRP No.155/09 - 6 - meritless. 6. This court while disposing the previous Writ Petition, W.P.C.No.30265/08 by the judgment dated 14.11.2008 wherein the dismissal of his application moved under Order 21 Rule 97 C.P.C. by the execution court was upheld, taking note that the petitioner had already filed a second appeal has observed that in the second appeal, numbered as R.S.A.No.711/08 filed with a petition to condone the delay, with the enquiry on such delay not completed, if entertained, he can advance all his contentions assailing the decree passed by the first appellate court reversing the dismissal of the suit by the trial court, provided his rights have been reserved by the orders of this court in the review petition filed by him in R.S.A.No.772/07 which was preferred by the first defendant against the decree and judgment of the first appellate court. The appeal preferred by the first defendant as R.S.A.No.772/07 was dismissed and, later, the revision petitioner/2nd defendant in the suit filed a review petition in which his right to challenge the decree by way of separate appeal is reserved was the case advanced by the revision petitioner in the above Writ Petition, and taking note of it the observations as above were made in the judgment. This court further observed that the revision petitioner/the 2nd defendant has all rights to resist the execution of CRP No.155/09 - 7 - the decree by advancing whatever contentions available to him, otherwise than resorting to Order 21 Rules 97, 98 and 99. His objections, if any, to the executability of the decree, if so filed, it was observed was bound to be considered by the execution court on its merit. The dismissal of the claim petition moved by the petitioner under Order 21 Rule 97 of the C.P.C. by the execution court was upheld by this court by the above judgment with the observations as indicated above. In the light of the observations so made by this court, and also under law, the objections raised by the petitioner to the executability of the decree required to be adjudicated with reference to the question whether he has independent right, title and possession over the property as covered under Order 21 Rule 97 of the C.P.C., is the case canvassed by the learned counsel for the petitioner advancing a plea that the decree sought to be executed is confined to enforceability of an agreement for sale directing the first defendant to execute a registered sale deed on the property with no decree for possession or any decree binding on the second defendant/the revision petitioner. 7. The challenges pressed into service by the learned counsel for the revision petitioner against the order of the execution court are unworthy of any merit. It is too late in the day to contend that a CRP No.155/09 - 8 - decree for specific performance without providing for possession of the suit property is confined to the enforceability of the agreement for sale by execution of a registered sale deed and nothing more. Section 22 of the Specific Relief Act introduced a new rule giving statutory recognition to the judicial decisions that in order to avoid a multiplicity of proceedings in a suit for specific performance, additional relief of possession, partition, refund of earnest money etc. can be granted. Before that provision was introduced, there was conflict in judicial decisions with one set holding that the relief of possession could be granted without claiming it in the plaint and the other set holding that the right to possession did not accrue until specific performance was decreed. True, sub-section (2) of Section 22 even after the introduction of that new provision, requires that the claim for possession must be specifically made. However, it is to be noticed that Section 55(1)(f) of the Transfer of Property Act, 1882 provides that the seller is bound to give, in the absence of the contract to the contrary on being so demanded by the buyer or such person as he directs, the possession of the property. Apparently, there is a conflict between the provisions under the Specific Relief Act and the Transfer of Property Act as indicated above. Whatever that conflicts be as between the provisions of the two Acts as indicated CRP No.155/09 - 9 - above, it has now been settled by a series of judicial pronouncements and concluded by the decision of the apex court that the decree of specific performance includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter as provided under Section 55 of the Transfer of Property Act, 1882. The apex court in Babu Lal v. Hazari Lal Kishori Lal (AIR 1982 S.C. 818) has held in unmistakable terms that the decree holder was entitled to possession obtaining a decree of specific performance, not only from the original owners, but also from the transferees. The apex court in the above case has held that it may not always be necessary for the plaintiff to specifically claim possession over the property since the relief of possession is inherent in the relief for specific performance of the contract of sale. Adverting to the proviso to sub-section (2) of Section 22 of the Specific Relief Act which provides for amendment of the plaint on such terms as may be just for including a claim for such relief “at any stage of the proceedings”, the apex court has held in emphatic terms that the word “proceeding” under Section 22 includes execution proceedings also. The observations of the apex court in the above decision leaves no room for any doubt as to the authority and empowerment of the execution court to give full effect to the decree CRP No.155/09 - 10 - for specific performance by ordering for putting the decree holder, in whose favour a decree for a specific performance was granted in respect of an immovable property, in possession of that property though it is not so specifically provided in the decree. It is profitable and more appropriate to note the following observations of the apex court: “The court when allowing the prayer for specific performance vests the executing Court with all the powers which are required to give full effect to the decree for specific performance. By the decree for specific performance, the Court sets out what it finds to be the real contract between the parties and declares that such a contract exists and it is for the executing Court to do the rest.” Scope and ambit of Section 28 of the Specific Relief Act, more particularly, sub-clause (b) of sub-section (3) of Section 28 of that Act which contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease was also taken into account by the apex court to hold that the court which passed a decree for specific performance retains control over the decree even after the decree and that in an CRP No.155/09 - 11 - execution proceeding from the decree granted for specific performance, the execution court is empowered to pass orders on delivery of possession on the execution of a conveyance, for the completion of such conveyance to the decree holder not only against the transferors but also against their transferee as well. Such being the position of law, the challenge raised by the revision petitioner, who was one among the defendants in the suit, after his resistance to the suit claim as a bonafide purchaser had been turned down, that no decree of possession was given in the suit for specific performance deserve to be taken note of only for its rejection. The decision relied by the learned counsel has no application to the facts of the case. The entitlement of a decree holder to treat his application under Order 21 Rule 35 or as one under Order 21 Rule 97 for removing the obstruction caused in delivering property was considered by the apex court in that decision. The observations in that decision do not render any assistance to the petitioner, a defendant in the suit, who is bound by the decree passed by the court to resist the execution of the decree. Whatever challenges against the merit of the decree after his claim as a bonafide purchaser had been negatived by the first appellate court in granting a decree in favour of the first respondent, can be agitated only in the second appeal if so entertained after CRP No.155/09 - 12 - condonation of the delay and, further, in case, any reservation had been made in the order in the review petition preferred against the dismissal of the second appeal from the decree of the appellate court by the first defendant in the suit. The revision is dismissed directing both parties to suffer their cost. srd S.S. SATHEESACHANDRAN, JUDGE