PETITIONER: UNION OF INDIA & <ORG>. Vs. RESPONDENT: K.S. SUBRAMANIAN DATE OF JUDGMENT30/07/1976 BENCH: <NAME>, M. HAMEEDULLAH BENCH: <NAME>, M. HAMEEDULLAH RAY, A.N. (CJ) <NAME>, JASWANT CITATION: 1976 AIR 2433 1977 SCR (1) 87 1976 SCC (3) 677 CITATOR INFO : F 1982 SC1407 (26) R 1985 SC1293 (122) RF 1988 SC 501 (5) R 1988 SC1531 (46) F 1989 SC1335 (33) ACT: Central Civil Service (Classification, Control and Ap- peal) Rules, 1965 Scope of--Rules applicable only when disciplinary proceedings are taken. Constitution of India, 1950, Arts. 309, 310 and 311--scope of Art. 310 vis-a-vis, Arts. 309 and 311. Practice--Duty of <ORG> where there is conflict between the views expressed by Divisional benches and larger benches of <ORG>. HEADNOTE: Respondent was a welder in <ORG>. On his services being terminated, without stating any rea- son, he filed a suit for damages for illegal termination on the basis that he would have continued in service upto the age of 60 instead of being thrown out at the age of 41. <ORG> gave a decree for damages which was affirmed by the <ORG> on the ground. that the doctrine of post held during the pleasure of the President, contained in Art. 310 , does not authorise the termination without complying with the procedure prescribed by <ORG> (Classification, Control and Appeal) Rules, 1965, framed under Art. 309. Allowing the appeal to this Court, HELD: (1) The Rules deal principally with the procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules. They are applicable if disciplinary proceedings had been taken against the respondent, but they do not make disciplinary proceedings incumbent or obligatory whenever the services of a person are terminated. In the present case there were no disciplinary proceedings against the respondent. [92 D-E] (2) The mere termination of the service. by an apparent- ly innocent order, of a Government servant in permanent service, in the sense that he is entitled to remain in service until he reaches the age of retirement, could be deemed, in a given case, to be a punishment. But, in that event, there had to be a finding on the rule or order under which the respondent was entitled to continue in service until he reached the age of 60. There is no reference to any such rule and there was no finding that any punishment was imposed upon him or that his services were terminated as a measure of punishment for any wrong done by him or for incompetence. [94 C; 93 <CITATION> AIR 1958 SC 36 @ 47 referred to. (3) Even assuming that the respondent was constructive- ly punished, there is no legal obligation to apply the Rules. The legal obligation to apply them to every case of punishment, flows from the provisions of Art. 311 and is confined to holders of posts covered by Art. 311. But the provisions of Art. 311 do not apply to the respondent since they do not apply to the holder of a post connected with defence. [94 E] L.R. Khurana v. Union of India  3 SCR 908 followed. (4) Terefore, when no disciplinary proceedings are instituted, the Rules will not at all apply, and there is no other rule dealing with the conditions under which the service, such as that of the respondent. may be terminated. Since there was no violation of any rule no question of a conflict between a rule framed under Art. 309 and the doc- trine of pleasure contained in Art. 310 , which applies to all Government servants including those in the services connected with defence, arises in the present case. [94 G] 88 (5) The <ORG> in dealing with the question consid- ered the view of <ORG> of this Court in two cases, merely quoted the views expressed by larger <NAME> of this Court, and then observed that these were insuffi- cient for deciding the point before it. The <ORG> did not act correctly in thus skirting the views expressed by larger <NAME> of this Court. The proper course for the <ORG> was to try to find out and follow the opinions expressed by the larger <NAME> in preference to those expressed by smaller <NAME>. This practice is followed even by this Court and has crystallized into a rule of law. If, however, the <ORG> was of opinion that the views expressed by larger <NAME> of this Court were not applica- ble to the facts of the present case it should have said so, giving reasons in support. [92 A-C] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 212 of 1975.

(Appeal by Special Leave from the Judgment and Order dated 26-6-1974 of <ORG> in A.S. No. 510/72).

<NAME>, <ORG> of India, <NAME> and <NAME> for the appellant. <NAME> for the respondent.

The Judgment of the Court was delivered by <ORG> J.--The <ORG> and the Commander, Officer- incharge, Naval Base, Cochin, are the appellants before us by grant of special leave against a judgment and decree of a Division Bench of <ORG>. The Division Bench had affirmed the decision of a learned subordinate Judge awarding Rs. 25,000/- as damages, together with inter- est @ 6% per annum, to the plaintiff-respondent for the illegal termination of the respondent's services. The plaintiff respondent was serving as a Welder, Grade II, in <ORG> at the Naval Base, Cochin, at the time of this allegedly illegal termination of service by an order of 25th October, 1968, of the <ORG>, <ORG>.

Special leave was granted on condition that the appel- lants Will bear the costs of the respondent in any event. The point of law sought to be canvassed before us is: Does the doctrine that a Central Govt. servant holds his post "at the pleasure of the President", contained in Article 310 of the Constitution, authorise the passing of an order of termination of services, without assigning any reason what- soever, of the holder of a post "connected with defence ?"

There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of pun- ishment for any wrong done by him or for incompetence, although, a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certain tests. The Subordinate Judge had awarded only Rs. 25,000-. out of a claim of Rs. 75,000/- made on the ground that, but for illegal termination of the service of the plaintiff-respond- ent, the-plaintiff would have continued in service upto the age of 60 years and duty promoted instead of being thrown out of service at the age of 41. The plaintiff respondent alleged that the termination of his service, without giving any reason whatsoever, was contrary to, rules made under Article 309. A glance at paragraph 4 of the plaint shows that the violation of rules relating to conduct of disciplinary proceedings was alleged by the petitioner. In paragraph 5 of the plaint, however, he alleged:

"As per the terms of appointment and the rules governing the service of the petitioner,, he is entitled normally to continue in service till the age of 60. If his service had not been terminated as per the impugned order, the petitioner would have been entitled to continue for a further period of 19 years and 8 months".

He proceeded to assert:

"Due to the illegal termination, the peti- tioner had lost a valuable right vested in him by virtue of his appointment and guaranteed by the Constitution of India and the rules framed thereun- der namely a right to continue in service for the full period of 19 years and 8 months and thus to gain a livelihood for himself and his family". A perusal of the judgment of <ORG> shows that the only point really considered by it was whether the pleasure of the President mentioned in Article 310 of the Constitution, can over-ride rules made under Article 309 of the Constitution.

<ORG> had explained away a passage cited from <CITATION> (1) by observing that it did not support the argument that rules made under Article 309 of the Constitution did not control the pleasure of the President, under Article.310 , which was to be subject to matters otherwise expressly provided in the Constitution. The passage so explained away runs follows :.

"If there is a specific provlsion in some part of the Constitution giving to a Government servant a tenure different from that provided for in Art. 310 , that Government servant is excluded from the operation of Art. 310. The said words refer, inter alia,, to Arts. 124, 148, 218 and 324 which provide that the Judges of <ORG>, the Auditor General, the Judges of <ORG> and the Chief Election Commissioner shall not be re- moved from their offices except in the manner laid down in those Articles. If the provisions of the Constitution specifically prescribing different tenures were excluded from Art. 310 , the purpose of that clause would be exhausted and thereafter the Article would be free from any other restrictive operation. In that event, Art. 309 and 310 should be read together, excluding the opening words in the latter Article, namely, "Except as expressly provided by this Constitution". Learned Counsel seeks to confine the operation of the opening words in Art. 309 to the provisions of the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants:, namely Arts. 146(2), 148(5) and 229(2). That may:be so, but there is no reason why Art. 310. should (1) A.I.R. 1961 S.C. 751.

8--1003 SCI/76 be excluded therefrom. It follows that while Art. 310 provided for a tenure at pleasure of the President or the Governor, Art. 309 enables the legislature or the executive, as the case may be, to make any law or rule in regard, inter alia, to conditions of service without impinging upon the overriding power recognised under Art. 310".

<ORG> relied on <CITATION> .,(1) to hold that doctrine of office held at the pleasure of the President was subject to rules made under Article 309 of the Constitution, and pointed out that it was held, inter-alia, by <ORG> of this Court (at p. 42):

"A Government servant serving under <ORG> holds his office at the pleasure of the President as provided in Article 310 of the Consti- tution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Art.311 ". <ORG> also relied on <CITATION> ,(2) where the same Division Bench of this Court had held inter-alia (at p. 111 ):

" Article 310(1) of the Constitution declares that every person who is a member of Civil service of a <ORG> or holds any civil post in a <ORG> holds office during the pleasure of the Governor of a <ORG>. But the pleasure doctrine embodied therein is subject to the other provisions in the Constitu- tion. Two other Articles in the Constitution which cut down the width of the power given under Article 310 (1) are Articles 309 and 311. Article 309 provides that subject to the provisions of the Constitution acts of the appropriate <ORG> may regulate the, recruitment, and conditions of service of persons appointed, to public. services and posts in connection with the affairs of the <ORG> or of any <ORG>. Proviso to that Article says:

'Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the: case of services and posts in connection with the af- fairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate <ORG> under this article, and any rules so made shall have effect subject to the provisions of any such Act ."

<ORG> then referred to <CITATION> .,(3) a decision of 5 learned Judges of this Court, in which <NAME>., speaking for the Constitution Bench of this Court, (1) A.I.R. 1971 S.C. 40. (2)  (1) S.C.C. 108 at 111.

(3) A.I.R. 1973 S.C. 2641 at 2645.

while considering the power of the <ORG>. to create, continue, and abolish a post said (at p. 2645):

" Article 309 provides that subject to the. provisions of the Constitution, Acts of the appropriate <ORG> may regulate the recruit- ment and conditions of service of persons appoint- ed, to public services and posts in connection with the affairs of the <ORG> or of any <ORG>. There- fore, Acts in respect of terms and conditions of service of persons are contemplated. Such Acts of <ORG> must however be subject to the provi- sions of the Constitution. This attracts Article 310 (1). The proviso to Art. 309 makes it compe- tent to the President or such person as he may direct in the case of services and posts in connection with the affairs of the <ORG> and for the Governor of a <ORG> or such person as he may direct in the case of services and posts in con- nection with the affairs of the <ORG>, to make rules regulating the recruitment and the conditions of service of persons appointed,, to such services and posts under the <ORG> and the <ORG>. These Rules and the exercise of power conferred on the delegate: must be subject to Article 310. The result is. that Article 309 cannot impair or affect the pleasure of the' President or the Gover- nor therein specified. Article 309 is, there- fore, to be. read subject to Article 310". <ORG>, after citing the passage set out above, said: "We do not understand the above passage as suggesting that Article 310 cannot in any manner be controlled by Rules framed under Article 309".

After a consideration of decisions of this <ORG> in this manner it -expressed its views as follows:

"These cases, we think, sufficiently indicate that while it may be open to the PreSident or to the Governor to dismiss a civil servant at pleas- ure, if Rules have been framed under Article 309 of the Constitution to regulate the mode and manner of termination of service, these .have to be com- plied with. This, we think, is reasonable and understandable enough on first principles. If the untrammelled pleasure of the President has been subjected to Rules framed by the President himself in regard to the manner of termination of service, the pleasure must be subject to such Rules". <NAME> of <ORG> then re- corded its conclusion:

"We are therefore of the opinion that in the instant case, the Civil Services (Classification, Control and Appeal) Rules, having been framed under Article 309 of the Constitution, the same had to be followed before the respondent's service was terminated. The same not having been admittedly complied with, the finding of the' <ORG> below that the termination is illegal was correct and requires no interference. No arguments were addressed on the quantum of damages awarded".

We do not think that the difficulty before <ORG> could be resolved by it by following what it consid- ered to be the view of <ORG> of this .<ORG> in two cases and by merely quoting the views expressed by larger benches of this <ORG> and then observing that these were insufficient for deciding the point before <ORG>. It is true that in each of the cases cited before <ORG>, observations of this <ORG> occur in a con- text different from that of the case before us. But, we do not think that <ORG> acted correctly in skirting the views expressed by larger benches of this <ORG> in the manner in which it had done this. The proper course for <ORG>, in such a case, is to try to find out and follow the opinions expressed by larger benches of this <ORG> in preference to those expressed by smaller benches of the <ORG> That is the practice followed by this <ORG> itself. The practice has now crystallized into a rule of law de- clared by this <ORG>. If, however, <ORG> was of opinion that the views expressed by larger benches of this <ORG> were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view.

we have perused the Central Civil Service (Classifica- tion, Control and Appeal) Rules of 1965, (hereinafter re- ferred to as '1955 Rules') which deal principally with procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules. There is no rule there dealing with the conditions under which a service such as that of the plaintiff respondent may be terminated. We fail to see any rule made under Article 309 of the Constitution which was violated by the impugned order of termination of service of the plaintiff-respondent. We do not consider ourselves called upon to. decide a ques- tion which has really not arisen in the case. before us. The 1965 Rules are applicable when disciplinary proceed- ings are taken. They do not make disciplinary proceedings under the rules incumbent or obligatory whenever the services of a person covered' by these rules are terminated. The obligation to follow the procedure for punishment laid down in the rules flows from the provisions of Article 311 of the Constitution. And, as the opening words of Arti- cle 310 show, the doctrine of office held at the pleasure of the' President does not apply to cases covered by Article

311. Rule 3 of the above mentioned rules begins. as follows:

"3. Application.--(l ) These rules shall apply to every Government servant including every civilian Government servant in the Defence Serv- ices, but shall not apply to-

(a) any railway servant, as defined in rule 102 of volume I of the Indian Railway Establishment Code,

(b) any member of <ORG>, (c) any person in casual employment,

(c) any person in casual employment,

(d) any person subject to discharge from service on less than one month's notice.

(e) any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the, previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions;

(2) Notwithstanding anything contained in sub-rule (1), the President may by order exclude any class of Government servants from the operation of all or any of these rules.

(3) Notwithstanding anything contained in sub-rule (1), or the Indian Railway Establishment Code, these rules shall apply to every Government servant temporarily transferred to a Service or post coming within exception (a) or (e) in sub- rule (1 ), to whom, but for such transfer, these rules would apply.

(4) If any doubt arises-

(a) whether these rules or any of them apply to any person, or

(b) whether any person to whom these rules apply belongs to a particular service the matter shall be referred to the President, who shall decide the same".

Even if the parties were governed by these rules, because the plaintiff held a civil post in one of the Defence; Departments, yet there must be some violation of one of these rules, which were no doubt framed under Article 309 read with clause 5 of Article 148 of the Constitution, before any question of a conflict between a rule framed under Article 309 and the provisions of Article 310 could possibly arise. We fail to see such a conflict here. These rules merely lay down procedure for matters cov- ered by Article 31 l of the Constitution. There is no doubt that proceedings under Article 311 of the Constitution constitute an exception to the doctrine of pleasure con- tained in Article 310 of the Constitution. But, in the case before us, no question of any disciplinary proceedings has been discussed because it did not arise at all. There is no finding that any punishment was imposed upon the plaintiff-respondent. It may be that mere termination of service, when the plaintiff.respondent was holding a perma- nent post and entitled to continue in service until 60 years of age, may constitute punishment per seven when the termination of service is not meant as a punishment. But, in that event,, there had to be a finding on the rule or order under which the plaintiff was entitled to continue in serv- ice. until he reached the age of 60 years. <ORG> had cited no rule made under. Article 309 to show that there was any such provision.

<CITATION> (1) <NAME>, CJ., speaking for the majority of a Bench of five judges of this Court, said (at p. 47):

"It has already been said that where a person is appointed substantively to a permanent post in <ORG> service.

(1) A.I.R. 1958 S.C. 36 at 47.

he normally acquires a right to hold the post until under the rules, he attains the age of superannua- tion or is compulsorily retired and in the absence of a contract, express or implied, or a service rule,. he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or. other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employ- ment".

The propositions laid down in <NAME>'s case (supra) by this, <ORG> mean that, unless a legally justifiable ground is made out for the termination of the service of a Govern- ment servant. in permanent service, in the sense that he is entitled to remain in service until he' reaches the age of retirement, he could be deemed in a given case to be pun- ished by an apparently innocent order of termination of service. If, however, the respondent belonged to a class of government servants the tenure or conditions of whose serv- ice was subject to the over-riding and unqualified sway of the power to terminate his services at will, by reason of Article 310(1) of the Constitution, we doubt whether he could claim to be a "permanent" servant, who could continue, as of right, in service until he reaches the age of super- annuation. At any rate, he could not be a "permanent" Government servant of the same class as one protected by Article 311.

Even if we were to hold that the plaintiff-respondent was constructively punished, the provisions of Article 311 , unfortunately, do not apply to such a <ORG> servant as the respondent was. Whereas the power contained in Article 310 governs all <ORG> servants, including those in the services connected with defence, the benefits of Article 311 , which impose limitations on the exercise of this power in cases of punishment, do not extend to those who hold posts "connected with defence". Constitution Bench of this Court has held, after a review of relevant authorities, this to be the position of the. holder of a post such as that of the plaintiff-respondent in L. R: <CITATION> . (1) As the plaintiff-respondent was not entitled to the protection of Article 311 , the only effect of the 1965 Rules upon his case is that they could be applied if disci- plinary proceedings had been taken against him as the holder of a post "connected with defence". In other eases of such servants,. where no such disciplinary proceedings are instituted (and none were started against the plaintiff-respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punish- ment, flowing from Article 311 , is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in <NAME>'s case (supra). (1)  3 S.C.R. 908.

We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these .Articles could not be in- voked against a discrimination made by Constitutional provi- sions, no such case was set up earlier. We cannot permit it at this stage.

The only ground on which the respondent had assailed the order of termination of his service was non-compliance of 1965 Rules, which meant' that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal must succeed.

Consequently, we allow this appeal, set aside the judgment and decree of <ORG> and ,dismiss the plaintiff's suit. But: in the circumstances of the case, the appellant will, in keeping with the undertaking given at the time of grant of special leave, bear the costs of both sides throughout.

Appeal allowed.

V.P.S.


PETITIONER: BABU LAL Vs. RESPONDENT: <NAME> KlSHORI LAL & ORS. DATE OF JUDGMENT29/01/1982 BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) SEN, A.P. (J) CITATION: 1982 AIR 818 1982 SCR (3) 94 1982 SCC (1) 525 1982 SCALE (1)79 ACT: Specific Relief Act , sections 22 and 28 read with section 55 of the Transfer of Property Act, scope of- Section 22 of the Specific Relief Act enacts a rule of pleading in order to avoid multiplicity of proceedings-When the court has decreed the suit for specific relief of execution of the agreement to sale of an immovable property without a separate prayer for possession in the plaint, the decree is still executable without recourse to another separate suit for possession-Powers of <ORG> to grant the relief in execution application. HEADNOTE: Pursuant to an agreement for sale of certain plots for Rs. 15, 500 M/s. <NAME> respondent No. 1 alongwith respondents 2 to 5 bad paid a sum of Rs. 1500/- as earnest money to respondents Nos. 6 to 9. The sale deed was to be executed within 15 days of the agreement. Respondents 6 to 9, how ever, executed a sale deed in favour of <NAME>, the petitioner, in respect of the same property for Rs. 20,000 on 7th August, 1967. Under the circumstances, respondents 1 to 5 filed a suit (No. 10 of 1968) in the court of Civil Judge, <NAME>, for specific performance of the contract of sale. The petitioner resisted the claim on the ground that the sale in his favour was in pursuance of a prior agreement dated 8th July, 1967. During the pendency of the suit, the petitioner started raising construction on the disputed plot after demolishing the old one. Respondents 1 to 5 applied for injunction restraining, the petitioner from doing so. The petitioner, however, gave an undertaking on 25th March, 1968, before <ORG> that he was making the construction at his own peril and would demolish the same and restore the land to its original position in case the suit of the plaintiffs was decreed. The trial court dismissed the suit but on appeal the additional District Judge decreed the suit and in second appeal <ORG> confirmed the judgment and decree of <ORG> and directed the petitioner and respondents 6 to 9 to execute the sale deed in favour of respondents Nos. 1 to 5. The petitioner,, however, did not handover possession and remove the construction raised by him despite his undertaking dated 25th March, 1968. The decree-holders, therefore, applied for execution of the decree. The judgment-debtor-petitioner filed an objection under section 47 of the Code of Civil Procedure taking all possible pleas to defeat the execution. His objections were three-fold: (i) The decree was inexecutable as the decree-holders did not claim a relief for possession in the suit itself and consequently there was no decree for 95 possession with the result that the application for execution by delivery of possession was liable to be dismissed in view of section 22 (2) of the Specific Relief Act ; (ii) the Urban Land Ceiling Act having come into force it was incumbent on the decree-holders to obtain the permission as required under sections 26 and 27 of the Ceiling Act and in the absence of any such permission the application for execution was not maintainable; and (iii) the vendors were not impleaded as parties originally and they were impleaded as parties only after the court had directed the vendors to execute the sale deed. As the vendors were not parties in the execution application it was not maintainable and it was not open to the execution court to implead a person who was not originally impleaded in the application. The execution court allowed the objection of the judgment debtor in part inasmuch as it directed the execution of the sale deed in pursuance of the decree. It, however, refused to grant the relief of possession with the observation that the remedy of the decree-holders for possession was by means of a separate suit and not by execution proceedings. Objections (ii) and (iii) were overruled. The order of the execution court was confirmed in appeal by they First Additional District Judge, <NAME>, dated 21st of February, 1977. <ORG> allowed the appeal of the decree-holders and modified the order of the court below to the effect that the decree-holders shall be entitled to possession also. Hence the petition by special leave by judgment debtor-petitioner. Dismissing the petition, the <ORG>. ^ HELD: 1. A decree for specific performance of a contract 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 being governed by section 55 of the Transfer of Property Act. [103 <CITATION> , A.I.R. 1952 Cal. 362; <CITATION> ., A.I.R. 1938 All. 432; <CITATION> , 37 Cal. 57; <NAME> v. <NAME>, 14 C.L.J. 159; <CITATION> , 5 Pat. L.J. 314; <NAME> v. <NAME>, A.l.R. 1931 Pat. 179; <CITATION> , A.I.R.  All. 643; <CITATION> .l.R. 1957 Pat. 70l; <CITATION> , A.I.R. 1955 Cal. 267; <CITATION> ., A.I.R. 1973 Mysore 131, discussed. 2:1. Section 22 enacts a rule of pleading. The purpose of section 22 is to avoid multiplicity of suits and to enable the plaintiff to claim a decree for possession in a suit for specific performance without being hampered by procedural complications, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed, and empowers the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. [104 E-F] 2:2. Though sub-section (2) of section 22 recognised in clear terms the well-established rule of procedure that the court should not entertain a claim of 96 the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to, by its proviso it provides that where the plaintiff has not specifically claimed appropriate reliefs like possession, partition or separate possession including the specific performance in his plaint, in the initial stages of the suit, the court shall permit the plaintiff at any stage of the proceedings, to include one or more of the said reliefs, by means of an amendment of the plaint on such terms as it may deem proper. [105 <CITATION> ., A.I.R. 1975 Delhi 155; <CITATION> , A.I.R. 1976 Delhi 56; <CITATION> , A.I.R. 1956 All. 586, approved. 2:3. The expression "in an appropriate case' 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 the immoveable property. That has to be done where the 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 of sale. Besides, the proviso to sub-section (2) of section 22 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". [106 G-H, 107 A-B] 2:4. The term "proceedings" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word "proceeding" in section 22 includes execution proceedings also. It is a term giving the widest freedom to a court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution. The <ORG> has given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case, <ORG> rightly granted the relief of possession. [107 C-E, 109 <CITATION> , A.I.R. 1956 All. 586; <CITATION> :

A.I.R. 1954 All. 643; <CITATION> , A.I.R. 1976 Delhi 56, approved.

3:1. If once the legal position is accepted that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the court itself in case he fails to execute the sale deed, no valuable right can be said to have accrued to the petitioner judgment-debtor by lapse of time, merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree- holders only after they had obtained a sale in respect of the disputed property. Section 22 has been enacted . Only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor. [109 D-F] 3:2. The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of section 22 , which is only an enabling provision. In the instant case, the objection of the petitioner requiring the decree-holders to file a separate suit for possession is hyper-technical. The execution court has every jurisdiction to allow the amendment. The mere omission of <ORG> to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when section 55 of the Transfer of Property Act authorises the transferee to get possession in pursuance of a sale deed. It was open to the <ORG> to allow an amendment, on the basis of section 22 indeed, it has allowed delivery of possession in pursuance of the decree passed in the case. [109 F-G, H, 110 A-B, E] 3:3. Further, sub-section (3) of section 28 clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the <ORG> may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to. Sub-clause (b) of sub-section (3) of section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-section (4) of section 28 bars the filing of a separate suit for any relief which may be claimed under section 28 . [112 A-C] 3:4. The High <ORG> had amended the decree passed by the first appellate court and passed a decree for possession not only against the transferors but also against their transferee, that is, the petitioner. A court which passes a decree for specific performance retains control over the decree even after the decree has been passed. Procedure is meant to advance the cause of justice and not to retard it. [112 G-H, 113 <CITATION> ., A.I.R. 1972 S.C. 1826, reiterated.

& CIVIL APPELLATE JURISDICTION : Petition for Special Leave to Appeal (Civil) No. 7771 of 1981.

From the Judgment and order dated the 2nd September, 1981 of <ORG> in Execution second Appeal Nos. 1001 & 1720 of 1977 and Civil Revision No. 1447 of 1978.

<NAME> for the Petitioner.

Mrs. <NAME> for the Respondent.

The Judgment of the Court was delivered by <ORG> This is a petition for special leave to appeal against the judgment and order dated 2nd of September, 1981 passed by <ORG> at Allahabad disposing of Execution Second Appeal No. 1001 and 1720 of 1977 and Civil Revision No. 1447 of 1978. The petition was heard on 7th of December, 1981 at some length and after hearing the counsel for the parties we dismissed the same for reasons to be recorded later. We Dow proceed to give the reasons.

The present petition is a typical example of the desperate effort of the judgment debtor to ward off the execution of the decree till the bailiff knocks at the door. Respondents Nos. 6 to 9 entered into an agreement with respondents Nos. 1 to 5 on 30th of July, 1967 for sale of certain plots situate behind their shop for Rs. 15,500. Respondents Nos. 1 to 5 had paid a sum of Rs. 1,500 as earnest money pursuant to the agreement. The sale deed was agreed to be executed within fifteen days of the agreement. Respondents Nos. 6 to 9, however, executed a sale deed in favour of the petitioner <NAME> in respect of the same property for Rs. 20,000 on 7th of August, 1967 in defiance of the earlier agreement dated 30th of July, 1967. Under the circumstances respondents Nos. 1 to 5 were obliged to file a suit which was later on numbered as suit No. 10 of 1968 in <ORG>, Aligarh for specific performance of the contract of sale. The petitioner resisted the claim on the ground that the sale in his favour was in pursuance of a prior agreement dated 8th of July, 1967. It appears that during the pendency of the suit the petitioner started construction on the disputed plot after demolishing the old construction. The plaintiffs, therefore, filed an application for an injunction restraining the petitioner from making any construction. The petitioner, however, gave an undertaking on 25th of March, 1968 that he was making the construction at his own peril and would demolish the construction and restore the land to its original position in case the suit of the plaintiffs was decreed. It appears that on the undertaking given by the petitioner the application for injunction was dismissed. The trial court dismissed the suit but on appeal the <ORG> District Judge decreed the suit. In Second Appeal <ORG> confirmed the judgment and decree of the first appellate court with a slight modification inasmuch as <ORG> directed the petitioner and respondent Nos. 6 to 9 to execute the sale deed in favour of the respondents Nos. 1 to 5, to bring it in line with the decision of <ORG> in <CITATION> . wherein it was held:

"In a suit instituted by a purchaser against the vendor and a subsequent purchaser for specific performance of the contract of sale, if the plaintiff succeeds, the proper form of the decree to be passed is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff."

The petitioner, however, did not handover possession and remove construction raised by him despite his undertaking dated 25th of March, 1968. The decree holders, therefore, applied for execution of thee decree. The judgment-debtor-petitioner filed an objection under section 47 of the Code of Civil Procedure taking all possible pleas to defeat the execution. His objections were three-fold: (1) The decree was inexecutable as the decree-holders did not claim a relief for possession in the suit itself and consequently there was no decree for possession. The application for execution by delivery of possession was liable to be dismissed on this score alone in view of section 22(2) of the Specific Relief Act. (2) The Urban Land Ceiling Act having come into force it was incumbent on the decree-holders to obtain the permission as required under sections 26 and 27 of that Act and in the absence of any such permission the application for execution was not maintainable (3) The vendors were not impleaded as parties originally and they were impleaded as parties only after the court had directed the vendors to execute the sale deed in Second Appeal. As the vendors were not parties in the execution application it was not maintainable and it was not open to the execution court to implead a person who was not originally impleaded in the application. The execution court allowed the objection of the judgment-debtor in part inasmuch as it directed the execution of the sale deed in pursuance of the decree. It, however, refused to grant the relief of possession with the observation that the remedy of the decree-holders for possession was by means of a separate suit and not the execution proceedings. The other two objection were, however, overruled. The order of the execution court was confirmed in appeal by the First <ORG> District Judge, <NAME> dated 21st of February, 1977. This order gave rise to two appeals, one by the judgment-debtor, being appeal No. 1720 of 1977, and the other by the decree-holders, being execution second appeal No. 1001 of 1977 to the extent the order went against them. There was yet another revision filed by the judgment-debtor petitioner, being civil revision No. 1447 of 1978 against the order dated 15th of March, 1978 whereby the judgment-debtor was directed to execute a sale deed in favour of the decree holders without obtaining permission from <ORG> under sections 26 and 27 of the Act. The appeal as well as the revision filed by the judgment-debtor were dismissed while the appeal of the decree-holders was allowed and the order of the courts below was modified to the effect that the decree-holders shall be entitled to possession also. The judgment-debtor petitioner has now come to this Court to seek permission to file an appeal against the judgment of <ORG> dated 2nd of September, 1981.

Only one contention has been raised on behalf of the petitioner by Mr. <NAME>, senior counsel, that <ORG> could not grant relief in execution application in excess of and out side the framework of the prayer by the plaintiffs in the original main suit. As a second limb to this argument it was further contended that <ORG> has acted in flagrant violation of the provisions of section 22 of the Specific Relief Act in granting the relief of possession. In substance, the main plank of the contention of the petitioner is based on section 22 of the Specific Relief Act. As it stands after amendment of 1963, it reads:

"22(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 Cl. (a) or Cl. (b) of sub-section (1) shall be granted by the <ORG> unless it has been specifically claimed:

Provided that where the plaintiff has not claimed any such relief in the plaint, the <ORG> 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 <ORG> to grant relief under Cl.

(b) of sub-section (1) shall be without prejudice to its power to award compensation under Sec. 21."

Mr. <NAME> was laying emphasis on sub-section (2) of section 22 to contend that tho plaintiffs having not claimed any relief for possession in the suit they cannot claim the same relief at a subsequent stage. According to him, in face of the clear mandate of sub-section (2) it was not open to <ORG> to have allowed the relief of possession at the execution stage, and in any case without an amendment of the plant.

The contention at the first flush appears to be alluring and plausible but on a closer scrutiny it cannot be accepted.

It would be appropriate to refer to the state of law as it existed prior to the amendment of the Specific Relief Act in 1963. One view was that the decree-holder does not acquire title or right to recover possession unless a sale deed is executed, in execution of the decree for specific performance. <CITATION> a Division Bench of <ORG> dealing with the question observed;

"A decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property the decree-holder has to proceed in execution in accordance with the provisions of 0.21 of the Code. So long as the sale deed is not executed in favour of the decree holder either by the defendant in the suit or by the <ORG> the title to the property remains vested in the defendant and till the execution of the sale deed the decree-holder has no right to the possession of the property. It is only the execution of the sale deed that transfers title to the property."

<CITATION> a Division Bench of the Calcutta High Court, however, after reviewing a number of reported cases, viz., <CITATION> . <NAME> v. <NAME>, <CITATION> , and <NAME> v. Barada Prasad, observed;

"It is incontestable that in a suit for specific performance of contract for the sale of land it is open to the plaintiff to join in the sale suit two prayers, one for the execution of the deed of transfer and another for recovery of possession of the land in question.

We ought to remember in this connection that no special form of decree in a suit for specific performance is supplied by the Civil Procedure Code.

Chapter 11, Specific Relief Act , deals with the various circumstances under which a contract may be enforced specifically and where it cannot be allowed. When a contract is to be specifically enforced, it means simply this that when the parties do not agree to perform the contract mutually the intervention of the <ORG> is required and the <ORG> will do all such things as the parties would have been bound to do had this been done without the intervention of the <ORG>. A sale of a property after payment of the consideration and upon due execution of the deed of sale presupposes and requires the vendor to put the purchaser in possession of the property. It cannot be suggested that when a party comes to <ORG> for a specific performance of a contract he is to be satisfied with simply the execution of the document on payment of the consideration money. The <ORG> 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, In may be noticed further that a decree in a suit for specific performance has been considered to be somewhat in the nature of preliminary decree which cannot be set out in the fullest detail all the different steps which are required to be taken to implement the main portion of the order directing specific performance of the contract. The executing court is in such a case vested with authority to issue necessary directions."

<CITATION> the decree for specific performance of a contract of sale was silent as to the relief of delivery of possession even though such relief was claimed in the suit. It was held by <ORG> that the executing court was still competent to deliver the possession. It was further held that it was not necessary in a suit for specific performance either to separately claim possession nor was it necessary for the court to pass a decree for possession. A decree for specific performance of a contract 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 being governed by section SS of the Transfer of property Act. <CITATION> Court took the view that the relief of procession is inherent in a relief for specific performance of contract for lease, and the court executing a decree for specific performance of such a contract can grant possession of the property to the decree-holder even though the decree did not provide for delivery of possession. <CITATION> Court took a similar view that the right to recover possession springs out of the contract which was being specifically enforced and not as a result of the execution and completion of the conveyance, and as such the judgment-debtor was bound to deliver possession to the decree-holder.

<CITATION> Court observed that the liability to deliver possession for specific performance was necessarily implied in a decree for specific performance directing the defendant to execute a sale deed on the principle of clause (f) of sub-section of section 55 of the Transfer of property Act, according to which the liability to deliver possession arises immediately upon execution of sale deed unless by agreement the date for delivery of possession is postponed.

In this state of the law <ORG> intervened and on the basis of the report of <ORG> enacted section 22 in 1963 as it stands.

Section 22 enacts a rule of pleading. The <ORG> thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The <ORG> has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition, or for separate possession including the relief for specific performance. These reliefs he can claim, not- withstanding anything contained in the Code of Civil Procedure, 1908, to the contrary, Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the <ORG>, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well- established rule of procedure that the court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stage of the suit, the court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.

The expression in-sub-section (1) of section 22 'in an appropriate case' is very significant, The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case'. As pointed out earlier, in view of order 2, rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, as a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed or such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he, is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder. This is no consonance with the provision of section 55 (1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.

There may be circumstances in which are lief for possession cannot be effectively granted to the decree- holder without specifically claiming relief for possession, viz., where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the t share of the defendant. It is in such cases that a relief for possession must be specifically pleaded.

In the instant case, it is pointed out on behalf of the petitioner that the possession was not with the respondents Nos. 6 to 9 but was with a third person namely, the petitioner, who was subsequent purchaser and, therefore. this was an appropriate case where the relief for possession should have been claimed by the plaintiff-respondents Nos. 1 to 5.

It may be pointed out that the Additional Civil Judge had decreed the suit for specific performance of the contract. <ORG> modified decree to the extent that the sale deed was to be executed by respondents Nos. 6 to 9 together with the petitioner. In short, the decree was passed by <ORG> not only against respondents Nos. 6 to 9 but also against the subsequent purchaser i.e., the petitioner and thus the petitioner was himself the judgment debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed 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'. This argument ignores the significance of the words 'in an 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 the immovable property. That has to be done where the 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 of sale. Besides, the proviso to sub-section (2) of section 22 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 word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process, any act done by authority of a court of law; any step taken in a cause by either party". The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in section 22 includes execution proceedings also. <CITATION> such a view was taken. It is a term giving the widest freedom to a court of law so that it may do justice to the parties in. the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It makes a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution.

<CITATION> Court endorsed the view taken in <CITATION> (supra) that where in a suit for specific performance of the contract for sale relief for possession is not claimed and consequently the decree passed in the suit contains no relief for delivery of possession. the court executing the decree is competent to deliver possession, an order directing delivery of possession being merely incidental to the execution of the deed of sale. The court however, observed that on March 1, 1964 Specific Relief Act of 1963 came into force and this Act altered the law by enacting section 22 . It made it necessary for the plaintiff to ask specifically the relief of possession in suits for specific performance. The Court, however, held that section 22 of the Specific Relief Act of 1963 had no appli-

cation to that case as the decree was passed when the old Act was in force.

The same <ORG>, however. in <CITATION> considered the effect of section 22 (2) with its proviso. In that case the decree did not give the plaintiff the relief of possession. The question arose. Was the Court powerless to put him in possession of the property though he had a decree for specific performance in his favour ? The Delhi <ORG> observed:

" Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance even though strictly speaking the right to possession accrues only when specific performance is decreed.. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time the defendant should execute the deed and put the plaintiff in possession.

In my opinion the proviso gives ample power to a court to allow the amendment of the plaint even at this stage. The proviso says that the amendment of the plaint can be allowed "at any stage of the proceedings" on such terms as may be just for including a claim for possession where the plaintiff has not claimed such relief in his original plaint.

The term "proceeding" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which Judicial business is conducted.

The word "proceeding" in Section 22 in my opinion includes execution proceedings also."

<ORG> had relied upon <NAME> v. <ORG> (<ORG>) for its decision in this case. We are in complete agreement with the view taken by <ORG> on this case.

It is thus clear that the <ORG> has given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case <ORG> granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the <ORG> should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection.

If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the <ORG> itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor. F The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of section 22 , which is only an enabling provision.

There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession The objection of the petitioner is hyper-technical. The execution court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession <ORG> should have allowed an amendment in the Plaint. The mere omission of <ORG> to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when section 55 of the Transfer of property Act authorises the transferee to get possession in pursuance of a sale deed.

As pointed out in the earlier part of the judgment, the petitioner had started construction and, therefore, the decree-holders sought to injunct him from making construction on the disputed land but they were lulled by undertaking given by the petitioner that he would demolish the construction and restore the land to its original position in case the suit for specific performance was decreed. The undertaking given no doubt is a clever undertaking, but that might have given an impression to the plaintiff decree holders that in the event of success of the suit the construction would be demolished and they would get back possession. Now the judgment-debtor petitioner seeks to lake advantage of the expression used in the undertaking to contend that he had undertaken only to demolish the construction and restore the land to its original position. The contention now raised is that the petitioner never gave an undertaking to restore back-possession of the disputed property to the decree-holders. Indeed, Mr. <NAME> stated before the <ORG> that he was prepared to get the construction demolished but then stops short and says that possession could not be delivered to the decree holders unless there was an amendment in the plaint. We are not prepared to take such a narrow view of section 22 . It was open to the <ORG> to allow an amendment and the <ORG> on the basis of that section has allowed delivery of possession in pursuance of the decree passed in the case.

Before closing discussion on this point we cannot lose sight of section 28 of the Specific Relief Act, 1963, which reads:

"28. (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lease does not, within the period allowed by the decree or such further period as The <ORG> may allow, pay the purchase-money or other sum which the <ORG> has ordered him to pay, the vendor or lessor may apply in the same suit in which the . decree is made, to have the contract rescinded and on such application the <ORG> may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub- section (1) the <ORG>-

(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor lessor. and

(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which the possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and; if the justice of the cases so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.

(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the <ORG> may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:

(a) the execution of a proper conveyance or lease by the vendor or lessor;

(b) the delivery of possession, or partition, and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be "

Sub-section (3) of section 28 clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the <ORG> may on application made in the same suit, award the purchaser or lessee such further relief as he may. be entitled to. Sub-clause (b) of sub-section (3) of section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-section (4) of section 28 bars the filing of a separate suit for any relief which may be claimed under this section.

<CITATION> . dealing with section 28 (1) of the Specific Relief Act , 1963 this Court observed:

" The Specific Relief Act , 1963, is not an exhaustive enactment and under the law relating to specific relief a <ORG> which passes a decree for specific performance retains control over the decree even after the decree had been passed. Therefore, the <ORG>, in the present case, retained control over the matter despite the decree and it was open to the <ORG>, when it was alleged that the party moved against had positively refused to complete the contract, to entertain the application and order rescission of the decree if the allegation was proved."

The reasoning given by this Court with regard to the applicability of sub-section (1) of section 28 will equally apply to the applicapability of sub-section (3) of section

28. This is an additional reason why this Court should not interfere with the eminently just order of <ORG>. <ORG> had amended the decree passed by the first appellate court and passed a decree for possession not only against the transferors but also against their transferee, that is, the petitioner.

Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by <ORG>.

For the reasons given above the petition for special leave to appeal must fail and it was accordingly dismissed. S.R. Petition dismissed.