TaxTMI 
TaxTMI 
2022 (4) TMI 1599
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....roperty on this day, to the 2nd and 3rd Parties. It has been agreed by the 1st Party that at her costs, she will produce Nil-Encumbrance Certificate before registration, and she will handover vacant possession of the Schedule property to the 2nd and 3rd Parties. 3. The Appellants filed a suit seeking specific performance of the said agreement and to direct the Respondent herein to execute the sale after receiving the balance sale consideration, failing which the Court may execute the sale deed in favour of the Appellants. In the written statement filed, the Respondent stated that there cannot be sale of any vacant plot unless the competent authority under the Urban Land Ceiling enactment gives the necessary permission. The Respondent admitted the agreement and averred that the Appellants had failed to take steps for permission from the competent authority. It was the stand of the Respondent that she was pressing for the transaction to be completed but the Appellants alone protracted the execution of the sale. 4. In the additional statement filed on 29.3.1985, the Respondent pleaded that she sold another plot to one Lakshmipathy in order to discharge the debt of Lakshmipathy. ....
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....t was pointed out that as per the decree-holders, the plot was not a vacant plot and had a pucca brick built double-storey house property and that the judgment debtor is only in possession of 750 sq. feet. Such application was allowed by the Executing Court on 20.7.2010. It was held as under: 14. Since the Petitioner/decree holder already obtained a decree of specific performance and the sale deed is also executed by this Court in their favour and as per their sale deed and as per the decree, this Court is of the opinion that the Petitioner/decree holders are entitled for the relief of delivery of possession. Accordingly, the petition is allowed and the Respondent is liable to hand over possession of the property to the Petitioners/decree holders as per the decree. 9. An appeal was filed against the said order which was dismissed on 2.12.2016. 10. The Respondent still aggrieved filed a petition Under Article 227 of the Constitution of India which has been allowed by the High Court on the ground that no decree was granted to the Appellants in respect of delivery of possession to the decree-holders, therefore, the execution for delivery of possession is not maintainabl....
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.... 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 (Cf. Abdul v. Abdul, 46 Mad. 148.) 13. The Act was enacted thereafter with newly added Section 22 to avoid multiplicity of proceedings. Section 22 reads thus: 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 co....
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.... and the decree passed in the suit does not direct delivery of possession, the Executing Court has no jurisdiction to deliver possession in execution of a decree, whereas other High Courts had taken a view such as the Patna High Court in the judgments reported as Atal Behary v. Barada Prasad AIR 1931 Patna 179, Janardan Kishore Lal v. Girdhari Lal AIR 1957 Patna 701 and Parameshwar Mandal v. Mahendra Nath AIR 1961 Patna 466; the Calcutta High Court in the judgments reported as Kartik Chandra v. Dibakar AIR 1952 Calcutta 362, Subodh Kumar v. Hiramoni Dasi AIR 1955 Calcutta 267; the Allahabad High Court in the judgments reported as Pt. Balmukand v. Veer Chand AIR 1954 Allahabad 643, Arjun Singh v. Sahu Maharaj Narain AIR 1950 Allahabad 415; the Mysore High Court in a judgment reported as Venkatesh v. Parappa (1966) 1 Mys LJ 799; the Madras High Court in a judgment reported as Sundara Ramanujam Naidu v. Sivalingam Pillai and Anr. AIR 1924 Mad 360 and the Madhya Pradesh High Court in a judgment reported as Dadulal Hanumanlala v. Smt. Deo Kunwar Bai w/o. Shantilal, Durg AIR 1963 MP 86 that relief of possession is inherent in a decree for specific performance and need not be specifically....
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.... Defendant should execute the deed and put the Plaintiff in possession. xxxx 13. 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.... 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 t....
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....the execution. 18. In Gyasa v. Smt. Risalo AIR 1977 Allahabad 156, the Allahabad High Court held that the expression 'in an appropriate case' 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 contract for the transfer of immovable property. That is to be done where the circumstances demand it. The relief for specific performance of the contract of sale embraces within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. The High Court held as under: 3. ... This argument ignores the significance of the words 'in an appropriate case' occurring in Sub-section (1). The expression 'in an appropriate case' 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 contract for the transfer of the immovable property. That is to be done where the circumstances demand it. The relief for specific performance of the contract of sale embraces within its ambit not only the execution of the sale deed bu....
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.... Dhiraj Bala Karia v. Jethia Estate Pvt. Ltd. was examining the question of court fee payable under the West Bengal Court-fees Act, 1970 as well as the scope of Section 22 of the Act. The Court held as under: 19. Therefore, in our view, relief for possession in favour of the successful Plaintiff in a suit for specific performance cannot be considered as a separate and distinct one. The same is only an ancillary or consequential one. Accordingly, the said prayer for delivery of possession of the property agreed to be transferred cannot be treated as an additional relief chargeable with court-fees Under Clause (v) of Section 7 of the West Bengal Court-fees Act, 1970. We have already held that when an agreement for transfer of an immovable property is enforced by the Court, upon the Plaintiff fulfilling his part of the obligation, the Defendant vendor is bound not only to execute necessary documents in favour of the Plaintiff-vendee and to register the same but also to put the said vendee in possession in discharge of the vendor's obligations under the said agreement. The said obligation of the vendee (vendor?) has been recognised both in Section 55(1)(f) and Section 108(....
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.... permission to the Court to allow amendment at any stage of the proceeding including execution of the decree. The amendment can be allowed even in an appeal arising out of the order passed by the executing Court rejecting the prayer for permission. The proviso recognises the well settled position that the Court passing a decree for specific performance retains control over the subject matter as long as anything remains to be done in the case. 23. In Adcon Electronics, the Defendant was in appeal before this Court. The Plaintiffs had filed a suit in the High Court of Judicature at Bombay with the leave of the Court Under Clause 12 of the Letters Patent. The Defendant took out chamber summons in the suit for revocation of the leave granted to the Plaintiffs. Such chamber summons were dismissed. Still aggrieved, the Defendant was before this Court. This Court examined the Federal Court's judgment in Moolji Jaitha in respect of the expression "suit for land" which could be filed in exercise of Original Jurisdiction of the High Court. The issue was not whether such a suit was a "suit for land" before this Court. Considering Section 22 of the Act, this Court held as under: ....
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....e Plaint to include the relief. In my opinion, a discretion is vested on the Court to allow the amendment and even in the absence of any prayer and even in the absence of any Application for amendment, the Court can grant the relief of recovery of possession once the Suit is decreed for Specific Performance. These aspects were not properly appreciated by the Court below and the Court below approached the Application in a pedantic manner and dismissed the application without appreciating the Judgments of the Hon'ble Supreme Court and of our High Court. 25. A perusal of the aforesaid judgments would show that relief of possession is ancillary to the decree for specific performance and need not be specifically claimed. That was the position even under the Specific Relief Act, 1877. Section 22 of the Act was introduced in pursuance of the recommendation of the Law Commission to avoid multiplicity of proceedings and to cut down the delay. Therefore, though the preponderance of judicial opinions under the Specific Relief Act, 1877 was in favour of the fact that relief of possession is ancillary to the decree for specific performance, it was further clarified by introducing Section....
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.... "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The Rule in question has to advance the cause of justice and not to defeat it. The Rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the Rule or procedure which promotes justice and prevents miscarriage has to be preferred. The Rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 28. A three-Judge Bench of this Court in a judgment reported as C. Bright v. District Collector and Ors. (2021) 2 SCC 392 was examining Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and held as under: 8. A well-s....