S.A.O. No.20 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. S.A.O No.20 of 2008 Date of Decision: 06.08.2009 Tejinder Singh ....Appellant Versus Subhash Chander Vohra ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Satbir Rathore, Advocate for the appellant. Mr. Anil Shukla, Advocate for the respondent. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. The breif facts necessary for adjudication is are that an agreement to sell was entered into between the appellant-Tejinder Singh and the respondent-Subhash Chander Vohra on 18-02-1994. Thereafter, the appellant refused to execute the sale deed. The plaintiff-respondent Subhash Chander filed a suit for specific performance. The suit of the respondent was finally decreed. In that suit, the plaintiff did not claim the relief of possession. The suit was partly decreed, but, subsequently on two separate appeals, having been filed by both the parties, the appeal filed by the plaintiff-respondent Subhash Chander was allowed, holding that he S.A.O. No.20 of 2008 2 was entitled to get the sale deed/conveyance deed executed regarding the house, in dispute. Thereafter, the plaintiff-decree holder filed an execution application for execution and registration of sale deed and also delivery of the vacant possession. The Executing Court ordered the execution of Sale Deed. Warrants of possession was also issued. The appellant-judgment debtor, however, filed objection petition before the Executing Court on the ground that the decree holder has not claimed relief of possession in the main case and hence, the relief of possession cannot be granted. The Executing Court accepted the objection petition and dismissed the execution application. The appeal was filed by the decree holder against order dated 02-06-2006 passed by Civil Judge (Jr. Divn.), Chandigarh. During the pendency of the appeal, an application under Section 22 of the Specific Relief Act, 1923 read with Order 6, Rule 17 and Section 151 CPC was also filed, seeking the amendmet of the plaint, as well as, the execution application to add the relief of possession. The said appeal was accepted and the case was remanded to the trial Court with the following directions :- “ As a result, this appeal is hereby accepted with no order as to costs and the case is remanded to the Trial Court with a direction to dispose of the application for amendment filed by decree holder/plaintiff, to frame proper issues and afford adequate opportunity to both the parties to adduce evidence. Record of the Trial Court be transmitted forthwith. However record of civil suit No.465 dated 18.12.1996 be returned to the Record Room. Ahlmad is directed to send the application for amendment along with the affidavit of the appellant to the Trial Court, however, its photostat copy be retained in the appeal file. Parties are directed to appear before the trial court on 5.5.2008.” Being aggrieved and dissatisfied with the judgment dated S.A.O. No.20 of 2008 3 16-04-2008 passed by Additional District Judge, Chandigarh, remanding the matter to the Trial Court, the appellant has challenged the same before this Court. Raising his first argument, learned counsel for the appellant states that no relief of possession was claimed by the plaintiff nor was the said relief granted. The only relief that was granted, was for execution of the sale deed. The same has been done and the decree is satisfied. The relief of possession, therefore, cannot be granted. In order to substantiate the same, learned counsel for the appellant relief upon a judgment of Hon'ble the Apex Court, reported in the case of Adcon Electronics Pvt. Ltd. vs. Daulat and another 2001(2) PLJ 523, to assert that while the decree, under execution, does not direct delivery of possession, the Executing Court has no right to issue the warrants of possession. Learned counsel for the respondent, on the other hand, asserted otherwise by placing reliance upon a judgment, reported as Babu Lal vs. M/s Hazari Lal Kishori Lal and others AIR 1982 Supreme Court 818, that the Executing Court, in a given situation, can direct issuance of warrants of possession even where, no such prayer has been made or no such order in the decree has been passed. After having perused both the judgments, it is apparent that divergent views have been expressed in these judgments. However, at this stage, it may not be necessary to adjudicate upon this controversy, in view of the application under Section 22 of the Specific Relief read with Order 6 Rule 17 and Section 151 of the C.P.C., having been moved before the Appellate Court to amend the plaint as well as the execution application to add the relief of possession. By moving the application under Section 22 of the Specific Relief Act, 1923 read with Order 6, Rule 17, the Decree Holder has taken the steam out of the very objection, raised by the appellant-J.D that the relief of possession cannot be granted as no prayer for the same was made. At this point, learned counsel for the appellant raised yet another argument and submitted that the appeal filed by the decree holder against the S.A.O. No.20 of 2008 4 order of the Executing Court before the Lower Appellate Court, is not maintainable, as the order of the Executing Court, passed under Section 47 read with Order 21 Rule 97 of C.P.C is not a decree after 1976 amendment in the C.P.C., and as such, the appeal does not lie against an order passed in execution proceedings. To substantiate his arguments, reliance has been placed on the judgment of Hon'ble the Apex Court, rendered in the case of Khazan Singh (D) v. Gurbhajan Singh 2007(2) RCR(Civil) 340. However, after having perused the judgment and the facts of the present case, the said judgment is not applicable in the facts of the present case as, herein, the objection petition was moved by the Judgment Debtor under Section 47 read with Order 21 Rule 97 of C.P.C. In view of the amended definition of the decree, no appeal may lie against the order passed under Section 47 of the C.P.C but the same would lie, in case, the order has been passed in a petition under Section 47 read with Order 21 Rule 97 of C.P.C. Even otherwise, as per the judgment of Hon'ble the Apex Court, rendered in the case of Babu Lal v. Raj Kumar & Ors. 1996(1) Civil Court Cases 713. It has been specifically held that an application under Section 47 of the C.P.C., is to be treated as an application under Order 21 Rule 97 and is required to be adjudicated under rule 98. The order is to be treated as a decree Under Order 21 Rule 103 and is subject to an appeal. The said judgment, while holding that an appeal was maintainable, observed in para 7, as follows :- “7. It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the objector the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has taken away. The determination of the question of the right, title or interest of the objector in the immovable property under S.A.O. No.20 of 2008 5 execution needs to be adjudicated under Order Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.” In any case, the application for amendment under Sections 22 and 28(3) of the Specific Relief Act, 1963 has been moved for amendment of the plaint to add the relief of possession and this application can be moved at any stage of the proceedings. This is evident from reading of proviso to Section 22 of the Specific Relief Act, 1963, which is reproduced below:- “22. Power to grant relief for possession, partition, refund of earnest money, etc.-(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for- (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) anyother relief to which he may be entitled, including the refund of any earnest money or deposit paid or [made by] him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend theplaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to S.A.O. No.20 of 2008 6 its powers to award compensation under section 21.” From the facts and discussions above, it is obvious that the respondent-decree holder has succeeded uptil the Hon'ble Supreme Court and a decree for specific relief for execution of a sale deed has been upheld. The sale deed has been executed. Even then, he has not been able to get the possession of the disputed house till date on the ground that no specific prayer for possession has been done. In order to overcome the technical difficulties, the decree holder has even moved an application for amendment of the prayer clause. The proviso to Section 22 of the Specific Relief Act, 1963, as reproduced above, permits him to move such an application, at any stage of the proceedings and if further allows him to amend the plaint on such terms, as may be just for including a claim for such relief. In the face of such an application, having been moved, there is no substance left in the arguments of the learned counsel for the appellant. The appeal is, accordingly dismissed, being devoid of merits. (NIRMALJIT KAUR) 06-08-2009 JUDGE gurpreet