KRISHNA KUMAR Vs. BALBIR SINGH

JUDGEMENT

(1.) BY means of this writ petition the petitioners have prayed for a writ of certiorari quashing the order dated 3-1-1981 of the Additional Civil Judge, Bijnor, rejecting the objection of the petitioners filed under section 47 of the CPC and the order dated 5-9-1981 of the 1st Additional District Judge, Bijnor in Civil Revision No. 20 of 1981, confirming the above order of the Civil Judge.

(2.) THE petitioners are the judgment-debtors of a decree passed against them in Suit No. 51 of 1974 filed by Balbir Singh, respondent no. 1 for specific performance of a contract for sale in respect of certain land. When the petitioners did not comply with the decree of that case, respondent no. 1 Balbir Singh filed an execution application for execution of that decree. THE objection raised by the petitioners before the executing court included, inter-alia, an objection that the decree itself was not executable, inasmuch as the decree-holder had not prayed for possession also as required under section 22 (2) of the Specific Relief Act (hereinafter referred to as the Act). This objection was rejected by the executing court and this order was affirmed by the appellate court also. It is these orders of the executing court and the appellate court which are challenged in this petition.

(3.) I do not agree with the petitioners that the above section has rendered the execution unexecutable merely because the decree-holder has not claimed partition and possession of the judgment debtors' half share in the land in question in respect of which the decree in Suit No. 51 of 1974 has directed him to execute a sale-deed. No doubt after the execution of the sale-deed the decree-holder will have further to seek partition and possession of the land covered by it. But section 22 of the Act does not bar execution of a sale-deed by the judgment-debtor merely because the decree-holder has not prayed partition or possession also along with the prayer for execution of the sale-deed as permitted by section 22 of the Act. This section merely confers a right on a decree-holder to ask for additional reliefs of possession, or partition and separate possession, of the property in the execution proceedings itself though not granted by the decree. It also enables the executing court to grant this additional relief to the decree-holder when asked for, if necessary, by allowing amendment of the plaint in the execution proceedings itself. It has conferred such a power on the executing court notwithstanding any provision to the contrary in the Code of Civil Procedure because under Order 2 Rule 2, CPC such a prayer for possession or partition and possession could not be combined with the relief for specific performance of contract for sale in the suit. The cause of action for claiming possession or partition and possession accrues only after the sale deed is executed and the decree-holder acquires title to the property in his favour. The two reliefs not emanating from the same cause of action could not be combined in the suit itself. Thus in a suit for specific performance of a contract for sale, a relief of possession or partition and separate possession cannot be claimed by the plaintiff having no title over the property in question. That created a difficulty for a decree-holder who, after obtaining a decree in a suit for specific performance of a contract for sale, had to file another suit for possession or partition and separate possession sometimes against third person. It is this difficulty which has been removed by the Legislature in the year 1963 by introducing section 22 in the Act. The object of this section, as pointed out by this Court in Gyasa v. Smt. Risalo, 1976 AWC 758, being only to avoid multiplicity of proceedings by permitting a decree-holder of such a decree to claim possession or partition and possession in execution proceedings itself. This Court has observed as under ;-