MANOJ Vs. MOHAN KUMAR

JUDGEMENT

(1.) By means of this writ petition, the petitioner has challenged the order of the executing court in execution case no.1 of 2002 dated 25.9.2014 by which at the stage of execution of decree amendment in the plaint for adding a prayer for delivery of possession has been allowed under Order 6, Rule 17 CPC. Against the aforesaid order of the executing court, a revision was filed and the revisional court vide its order dated 8.10.2014 dismissed the revision also. These two orders are impugned in the present writ petition.

(2.) Brief facts are that an agreement to sell was executed on 2.12.1991 between one Bhagwan Das and the defendants. When Bhagwan Das failed to execute the sale deed pursuant to the aforesaid agreement, a suit No.20 of 1995 was instituted for specific performance. The said suit was contested and a decree dated 21.8.2000 was passed for execution of sale deed . For execution of the aforesaid decree an execution case No. 1 of 2002 was filed and by intervention of the court, the sale deed was finally executed on 1.10.2013 which was registered on 19.10.2013. The executing court after execution of the sale deed went on to retrieve possession from the petitioner to be delivered to the respondents . The said order was subject matter of challenge in writ petition filed by the petitioner being writ petition No.34672 of 2014-Manoj and others Vs. Mohan Kumar and others which writ petition was disposed of by the judgment and order dated 17.7.2014. The ground taken in the said writ petition was that in view of Sec. 22(1)(a) of the Specific Relief Act since there was no specific plea for delivery of possession in the plaint, therefore, the executing court could not have gone to deliver the possession to the plaintiff. It was contended that the moment sale deed was executed , the decree was satisfied and the delivery of possession which was not specifically pleaded in the plaint could not have been delivered to the respondents. This Court accepted the aforesaid contention relying upon a decision of Honourable Supreme Court and passed the following order:

(3.) Sri Murli Dhar Misra, learned counsel appearing for the petitioner submits that pursuant to the aforesaid order, the respondents have now moved an application for amendment under Order 6, Rule 17 C.P.C. and according to the proviso to Rule 17 such a plea could not have been made with such a delay and no reasons have also been assigned as to why such a plea was not taken at the time of the filing of the suit.