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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER 2014
BEFORE
THE HON’BLE MR. JUSTICE H.BILLAPPA
WRIT PETITION NO.107578/2014 (GM-CPC)
BETWEEN:
DHAREPPA SANKAPPA RAHUT
AGE: 69 YEARS,
OCC: AGRICULTURE
R/O. KURUVINAKOPPA,
TQ: SAUNDATTI,
DIST: BELGAUM.
... PETITIONER
(BY SRI.: H M DHARIGOND, ADV.)
AND
1.
MAINUDDIN SARVARSAB JANGLISABANAVAR
AGE: 53 YEARS,
OCC: AGRICULTURE
R/O. KURUVINAKOPPA,
TQ: SAUNDATTI,
DIST: BELGAUM.
2.
SANKAPPA DHAREPPA RAHUT
AGE: 69 YEARS,
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OCC: AGRICULTURE
R/O. KURUVINAKOPPA, TQ: SAUNDATTI
DIST: BELGAUM.
... RESPONDENTS
(BY SRI.: R M KULKARNI FOR C/R1,
R2 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER DATED 11.07.2014
PASSED ON I.A.NO.8 IN EXECUTION PETITION 9/2012
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AT
SAUNDATTI VIDE ANNEXURE-G AND ALLOW THE
APPLICATION FILED BY THE PETITIONER DATED
25.06.2014 VIDE ANNEXURE-E.
THIS
WRIT
PETITION
COMING
ON
FOR
PRELIMINARY HEARING, THIS DAY, THE COURT, MADE
THE FOLLOWING:
ORDER
Notice to the second respondent is dispensed with.
2. Heard the learned counsel for the petitioner and also
the learned counsel for the first respondent on merits.
3. In this writ petition under Articles 226 and 227 of the
Constitution of India, the petitioner has called in question the
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order dated 11/7/2014 passed by the Executing Court in E.P.
No.9/2012 vide Annexure-G.
4. By the impugned order at Annexure-G, the Executing
Court has rejected IA No.VIII filed by the petitioner to close
the Execution Petition.
5. Aggrieved by that, the petitioner has filed this writ
petition.
6. The
first
respondent
had
filed
a
suit
in
OS
No.90/2010 for specific performance of the sale agreement
dated 10/7/2007 against the petitioner and the second
respondent.
The Trial Court had decreed the suit on
4/9/2012.
It has become final.
respondent
has
initiated
the
Thereafter, the first
execution
proceedings
in
Execution case No.9/2012. In the Execution proceedings, the
Court Commissioner has executed the sale deed in favour of
the first respondent. Thereafter, the first respondent has filed
IA Nos.2 and 9 for delivery of possession by appointing a
Court Commissioner. The Executing Court has ordered notice
on IA No.2.
Thereafter, the petitioner has filed IA No.VIII
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under Section 151 of CPC praying to close the execution
proceedings on the ground that the decree is fully satisfied
and there is no decree for delivery of possession. The
Executing Court by its order dated 11/7/2014 has rejected
the IA No.VIII. Therefore, this writ petition.
7. The first respondent has filed statement of objections
contending that IA No.VIII was filed to defeat the fruits of the
decree and the Executing Court has rightly rejected the
application placing reliance on the decision of the Hon’ble
Supreme Court reported in AIR 1982 SC Page 818 and
therefore, the impugned order does not call for interference.
8. The learned counsel for the petitioner contended that
the impugned order cannot be sustained in law.
He also
submitted that the decree is passed for specific performance
of the sale agreement. There is no direction for delivery of
possession. The sale deed is executed and the decree is fully
satisfied. Inviting my attention to Section 22 of the Specific
Relief Act, he submitted that unless the relief of possession is
claimed, possession cannot be delivered in the execution
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proceedings. Therefore, the Executing Court was not justified
in rejecting the application.
He placed reliance on the
decision of the Hon’ble Supreme Court reported in AIR 2001
SC page 3712 and decision of this Court reported in 1979 ILR
page 1401.
9. As
against
this,
the
learned
counsel
for
the
respondent submitted the impugned order does not call for
interference. He also submitted that the decree is for specific
performance of the sale agreement. The sale deed is
executed through the process of Court. There is a recital in
the sale agreement that possession has to be delivered at the
time of executing the sale deed. The entire sale consideration
amount has been paid. The first respondent has filed
application for
delivery of possession.
It is
pending.
Therefore, the Executing Court was justified in rejecting the
application.
Inviting my attention to Section 28(3) of the
Specific Relief Act, 1963, the learned counsel for the first
respondent submitted that where the purchaser is ordered to
pay the amount under the decree and if the amount is paid,
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the Court may on application made can grant further relief of
delivery of possession. He placed reliance on the decision of
the Hon’ble Supreme Court reported in AIR SC 1982-0-818
Babu Lal Vs. Hazari Lal Kishori Lal and ILR 2000 KAR SN
No.94.
10.
I have carefully considered the submissions made
by the learned Counsel for the parties.
2. The point that arise for my consideration is;
Whether the impugned order calls for interference?
3. It is relevant to note, the first respondent had filed
suit in OS No.90/2010 for specific performance of sale
agreement dated 10/7/2007 against the petitioner and the
second respondent. The Trial Court had decreed the suit on
4/9/2012.
Thereafter, the first respondent has initiated
execution proceedings.
The sale deed has been executed
through the process of Court by the Court Commissioner.
The balance sale consideration amount has been deposited.
The first respondent has filed application to appoint the
Surveyor as Court Commissioner for delivery of possession.
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It is pending.
In the meanwhile, the petitioner has filed IA
No.VIII to close the execution petition on the ground that the
decree is satisfied and there is no direction in the decree to
deliver possession. The Executing Court by its order dated
11/7/2014 has rejected IA No.VIII. The decree is for specific
performance.
There is a recital in the sale agreement that
possession shall be delivered at the time of executing the sale
deed. The sale deed has been executed through the process
of Court.
Possession has to be delivered.
The petitioner
contends there is no direction in the decree to deliver
possession and therefore, possession cannot be delivered in
the execution proceedings. He relies upon Section 22 of the
Specific Relief Act, 1963, which reads as under:“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
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(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 21.23.Liquidation of damages not a
bar to specific performance.”
11.
Reliance was also placed on the decision of the
Hon’ble Supreme Court reported in AIR 2001 SC 371 and full
Bench decision of this Court reported in ILR 1979, page 1401.
No doubt as contended by the learned counsel for the
petitioner, Section 22 of the Specific Relief Act provides that
the relief of possession cannot be granted unless it is
specifically claimed. The decision relied upon by the learned
counsel for the petitioner, also supports the contention that
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relief of possession cannot be granted unless it is claimed.
But, in the said decision, Section 28(3) of the Specific Relief
Act, 1963, has not been considered.
Section 28(3) of the
Specific Relief Act, reads as follows:“28. Rescission in certain circumstances of
contracts for the sale or lease of immovable property,
the specific performance of which has been decreed.
(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 subsection (1), the court 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.”
12.
It is clear, if the purchaser pays the amount
under the decree, the Court may on an application made,
grant the relief of delivery of possession.
This aspect has
been considered by the Hon’ble Supreme Court in Babu Lal
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Vs.Hazari Lal Kishori LAl reported in AIR(SC)-1982-SC-0-818,
wherein it is observed as follows:“We are not prepared to take such a narrow view
of Section 22.
It was open to the Court to allow an
amendment and the Court on the basis of that Section
has allowed delivery of possession in pursuance of the
decree passed in the case”.
Section 28 of the Specific Relief Act is also referred to in
paras 25 and 26 of the judgement.
13.
This Court, in K.Bhimanna Vs.Putta Madegowda
case reported in ILR 2000 KAR SN 94 in a suit for specific
performance where there was no specific prayer for delivery of
possession and after the suit was decreed possession was also
sought and the executing Court dismissed the petition on the
ground that there is no direction regarding delivery of
possession of the decree, this Court has held that the Court has
to direct the delivery of possession in view of the provisions of
Section 28(3) and (4) of the Specific Relief Act. Therefore, it is
clear, where the amount has been paid under the decree and
application has been filed for delivery of possession, it is well
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within the power of the Court to direct delivery of possession.
Therefore, there is no merit in the contention that the decree is
fully satisfied and there is no direction in the decree for delivery
of possession and therefore, the execution proceedings need to
be closed.
Accordingly, it is rejected. The impugned order
passed by the Executing Court is justified in law. Therefore, it
does not call for interference.
Accordingly, the writ petition is dismissed.
Sd/JUDGE
Vmb