C.R. No. 1739 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 1739 of 2009 Date of Decision: August 17, 2009 Mrs. Veena Chadha …..Petitioner Vs. Satnam Singh Dua and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. H.K.Aurora, Advocate for the petitioner. Mr.Naresh Kaushik, Advocate for the respondents. -.- M.M.S. BEDI, J. Mrs. Veena Chadha- petitioner has preferred this revision petition under Article 227 of the Constitution of India against the order dated February 27, 2009 passed by Judicial Magistrate Ist Class, Jalandhar, dismissing the objection petition of the petitioner for staying the execution for delivering of physical possession of shops in possession of the petitioner except by due course of law. C.R. No. 1739 of 2009 [2] Briefly stated the facts of the case are that plaintiff- respondent No.1 Satnam Singh Dua filed a suit for possession by way of specific performance of agreement to sell dated October 19, 1993, executed by defendant No.1 (respondent No.2) in his favour for House No. 56/6 situated in Bhargo Camp, Jalandhar with an alternative prayer for recovery of Rs.20000/- alongwith interest @ 18% per annum till its realization. The petitioner alongwith her husband- respondent No.3 was also impleaded as defendant Nos.2 and 3. In the said suit, respondent No.1- plaintiff had alleged that defendant No.2 was his tenant and that the petitioner- defendant No.3 is the wife of defendant No.2. Since 1993, plaintiff- respondent No.1 Satnam Singh had been visiting defendants No.2 and 3 to collect rent of his property and the execution of agreement of sale was in the knowledge of defendant No.2 and his wife- petitioner. As the petitioner (defendant No.3) and defendant No.2 were claiming that they had purchased the property, they were impleaded being subsequent purchasers. The suit of the plaintiff- respondent No.1 for specific performance was decreed. The relevant portion of the decree is as follows:- “It is ordered that the suit of the plaintiff stands decreed ex-parte in favour of the plaintiff and against the defendant No.1 for a recovery of Rs.10000/- with costs and with interest at the rate of 12% PA w.e.f. 19.10.93 till the realization of decretal amount. Suit or the plaintiff against defendants No.2 and 3 stands dismissed.” C.R. No. 1739 of 2009 [3] A perusal of the decree clearly indicates that the suit for specific performance was decreed ex-parte in favour of plaintiff-respondent No.1 and against defendant No.1- Ramesh Kumar but the suit of plaintiff- respondent No.1 was dismissed qua the petitioner and her husband- respondent No.3 (defendants No.2 and 3). Plaintiff filed an appeal against the ex-parte decree against Ramesh Kumar by impleading the petitioner and her husband as respondents. The lower Appellate Court slightly modified the decree and passed the following decree:- “22. As a sequel to my above discussion, the findings of the trial Court on issue No.2 are set aside the appeal is accepted with costs and the judgment of the trial Court set aside and thereby suit of the plaintiff is decreed with costs for specific performance of the agreement to sell dated 19.10.1993 with the direction that the defendant No.1 will execute the sale deed in favour of the plaintiff within two months failing which the plaintiff shall be at liberty to get the sale deed executed through the court on deposit of the balance sale consideration within a period of one month. Decree be drawn accordingly.” It is specifically held by two Courts that defendant No.1 Ramesh Kumar would execute a sale deed in favour of the plaintiff within a period of 2 months failing which the plaintiff shall be liable to execute the C.R. No. 1739 of 2009 [4] sale deed through Court on deposit of balance sale consideration within a period of one month. Counsel for both the parties had agreed that the decree has been executed and a sale deed has already been executed in favour of the plaintiff- respondent No.1. The plaintiff- respondent No.1 filed an application for execution of the decree seeking warrant of possession in his favour against the judgment debtors. Notice was issued to the judgment debtors. The petitioner judgment debtor filed an application for staying the execution regarding delivery of possession of the shops on the ground that the judgment debtor had admittedly been a tenant as pleaded by decree holder and a tenant can be ejected only by an ejectment order but only symbolic possession can be granted to the decree holder. The plaintiff- decree holder claimed that judgment debtor had filed objections on the same ground which was dismissed by Civil Judge, (Junior Division), Jalandhar, on September 8, 2007. The tenancy of judgment debtor, if any, had come to end when she purchased the property from landlord so the application filed by judgment debtor is liable to be dismissed as the position of judgment debtor is that of a trespasser and that the property is lying vacant. The Executing Court arrived at a conclusion that the stand taken by the petitioner that she was owner of the suit in property being bonafide purchaser has been disbelieved and her status before the alleged purchase was that of a tenant. Her rights of tenancy cease to exist. The objection petition filed by the petitioner was thus dismissed. C.R. No. 1739 of 2009 [5] Learned counsel for the petitioner submitted that the suit of the plaintiff- respondent was decreed for specific performance but it was decreed only against defendant No.1. It was specifically dismissed against the petitioner and her husband who were defendants No.2 and 3. The plaintiff was not satisfied. He filed an appeal. In appeal also the suit for specific performance was decreed but again a direction was given to defendant No.1 only to execute the sale deed. Counsel for the respondent Mr.Naresh Kaushik vehemently urged that the suit for specific performance was decreed as such it would be implied that he could take possession of the property from the defendant- judgment debtor. He argued that when a decree for specific performance by possession is obtained, it always implies delivery of possession. He in order to emphasis his contention referred to Section 22 of the Specific Relief Act, (hereinafter referred to as ‘the Act’). According to counsel for the respondents, any person suing for specific performance of the contract for transfer of immoveable property can ask for possession or any other relief under Order 22 Rule 1 (a) (b) of the Act. He argued that under the proviso of Section 22 (2) of the Act when the plaintiff has not claimed any relief for possession in the plaint, the Court shall at any stage of the proceedings allow him to amend the plaint and include the said claim. I have tried my level best to understand as to how Section 22 of the Act in the present case would help plaintiff- respondent No.1. Section 22 of the Act reads as follows:- C.R. No. 1739 of 2009 [6] “Section 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) any other 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 the plaint 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 its powers to award compensation under section 21.” C.R. No. 1739 of 2009 [7] A bare reading of abovesaid Act indicates that Section 22 of the Act is an enabling provision which helps a person to claim possession in his suit for specific performance or also to claim any other relief including the refund of earnest money. But the said relief has to be claimed before it is granted. In the present case, the relief of possession had been claimed by the respondent- plaintiff but it was specifically declined to him qua the petitioner- defendant No.3 and defendant No.2. The plaintiff had tried his luck in appeal to get the said relief against defendants No.2 and 3 but relief of possession was not specifically granted qua the petitioner and her husband respondent No.3. As the petitioners had been claiming to be bonafide purchasers as such she and her husband challenged the judgment and decree passed in favour of the plaintiff by filing RSA No. 990 of 2005. The said appeal was dismissed on October 19, 2007. The plea of the petitioner being bonafide purchaser has been finally confirmed against her and her husband. The decree-holder/ plaintiff had himself admitted the status of the petitioner and her husband as a tenant. The dismissal of the Regular Second Appeal has been projected by counsel for the respondents, to be prejudicial to the petitioner, but it is pertinent to observe here that the plaintiff-respondent does not have any decree of possession against the present petition and by implication the Executing Court cannot presume same by going beyond the decree. When a particular relief has been specifically declined, the Executing Court cannot on the basis of vague presumptions assume jurisdiction to go beyond the decree passed by the Court and grant a relief which has been specifically declined. C.R. No. 1739 of 2009 [8] Counsel for the petitioner has placed reliance on Shreenath Vs. Rajesh, AIR 1998 SC 1827, in which a third person in possession of the property claiming independent right as tenant, had filed objections in executing proceedings of decree of possession. It was held that said third person who was not a party to suit for possession could resist the decree by seeking adjudication of his objection under Order 21 Rule 97 CPC and the Executing Court has to adjudicate the objections finally under Rule 101 CPC. In the said case in a decree for redemption of mortgage, a tenant who was in possession of the property before mortgage came into existence, it was held that only symbolic possession could be given to the decree holder. In context to Order 21 Rule 97 CPC, it was observed that meaning of word “any person” would include even a person not bound by a decree or claiming right in the property on his own including that of a tenant including stranger. The facts of the said case seem to be different from the facts of the present case. In the present case, the objector- petitioner is a party to the decree which has not actually been passed against her but has been passed against defendant No.1. Objection under Order 21 Rule 97 CPC might not be applicable but on receipt of show-cause notice under Order 21 Rule 22 CPC, the petitioner had a right to file objections to the execution of decree under Order 23 (2) CPC. As per Order 21 Rule 35 CPC, where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by C.R. No. 1739 of 2009 [9] removing any person bound by the decree who refuses to vacate the property. Order 21 Rule 35 CPC reads as follows:- “35. Decree for immovable property” (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession.” C.R. No. 1739 of 2009 [10] A perusal of Rule 35 CPC indicates that possession shall be delivered to the party to whom it has been adjudged. Only a person who is bound by the decree can be removed if he refuses to vacate the property. A careful perusal of the decree passed in favour of the plaintiff- respondent No.1 by the trial Court as well as by the lower Appellate Court indicates that there is absolutely no decree for possession passed in favour of the plaintiff- respondent though he had prayed for the same. The Executing Court cannot by implication, presume that a decree for possession has been passed against the petitioner or that the same can be executed against her. The petition filed by the petitioner is allowed. The decree for execution of sale has already been executed. There is no decree for possession. The plaintiff- respondent No.1 may seek the possession of the property in accordance with the procedure of law. August 17, 2009 (M.M.S.BEDI) sanjay JUDGE