THOMAS AND ANR. Vs. KRISHNA SHENOI

JUDGEMENT

(1.) THE short question in this appeal by the judgment -debtor is whether the courts below were wrong in allowing the Respondent -decreeholder's prayer for possession of property in execution of the decree for specific performance of a contract for sale, when the decree did not give any express relief of delivery of possession. The Appellant had contended that as the plaint did not ask for such a relief and the decree had not granted it, the execution court had no jurisdiction to order delivery of possession and it could only refer the Respondent to a fresh suit for possession on the strength of the sale deed executed by the court in his favour in execution of the decree. This contention failed before the courts below.

(2.) COUNSEL for the Appellant argued that it was beyond the jurisdiction of the execution court to deliver possession of the property in the absence of an enabling provision in the decree, even though the Respondent has now become owner of the property and has thereby obtained a right to secure possession on the strength of his title. Relying upon Brijmohan v. Chandrabhagabai : A.I.R.1948 Nag 406 counsel, maintained that this has always been the law and that in any case it is the law under Section 22 of the Specific Relief Act, 1963, whatever might have been the position before.

(3.) NOW there is no dispute that by the suit contract the Appellant agreed not only to sell the property to the Respondent but also to put him in possession of it. It was this contract of which the court decreed specific performance, the contract to execute the sale deed and give the Respondent possession of the property. On the failure of the Appellant, the court executed the sale deed on his behalf in favour of the Respondent. On the terms of the contract of Sale and under Section 55(1)(f), Transfer of Property Act, the Appellant was bound to give possession of the property to the Respondent. It was incidental to the relief of specific performance that besides the conveyance possession should also be given to the Respondent; in other words that relief was a mandate to the Respondent to do both and thus complete the specific performance. If he defaults in either it is for the court to do it for him at the Respondent's instance and as the court has already executed the sale deed what remains is to carry out the Appellant's unfulfilled obligation to put the Respondent in possession of the property. As the right to obtain possession is thus implicit in the decree, the absence of a specific relief for delivery of possession is immaterial. When the court thus puts the Respondent in possession of the property it is but executing the decree for specific performance which is within its jurisdiction. The learned Judge who decided : A.I.R. 1948 Nag 406 omitted to take note of the rights of the parties to a decree for specific performance but had merely gone by the general principle that the power of the executing court is conditioned by the reliefs granted by the decree. With respect I disagree from the view taken in that decision.