SHYAMA Vs. DULICBAND AND ORS.

JUDGEMENT

(1.) THIS petition Under Article 226 of the Constitution of India is directed against the orders dated 19 -10 -81 and 19 -1 -82 (Annexure I and 2), rejecting the objection of the Petitioner judgment debtor Under Section 47 of the Code of Civil Procedure, in execution proceedings, in a suit for specific performance of the agreement dated 24 -6 -72.

(2.) THE facts of the case lie in a narrow compass and they ate these. A suit for specific performance of the agreement dated 24 -6 -72 was filed by Respondent No. 1 against the Petitioner and the said suit was decreed. Thereafter the first appeal and the second appeal filed by the Petitioner failed. Respondent No. 1 put the decree in execution and also claimed relief for possession, which was as a consequence of the execution of the sale deed. But the Petitioner judgment debtor filed an objection to the execution of decree stating that the relief for possession cannot be granted in execution and even the plaint cannot be amended at the execution stage. The objection raised by the Petitioners in execution proceeding was dismissed by the impugned orders and these orders have been challenged by the present petition.

(3.) SRI B. Dayal, appearing for Respondent No. 1, on the other hand, urged that in a suit for specific performance of the agreement to sell, the relief for possession was just incidental. The sale deed executed by the Defendant judgment debtor Petitioner would invariably contain the assertion that the vendee was being delivered possession consequent upon the execution of the sale deed. The relief for possession was claimed by the Respondent just for the sake of precaution. Sections 22 and 28(3) of the Act were couched in a very comprehensive language. These provisions enable the decree holder to claim the relief for possession at any stage, and it is obligatory on the part of the execution court to allow that relief by permitting the Plaintiff to amend the plaint. The Respondent Nos. 2 and 3 were justified in rejecting the objection of the Petitioner judgment debtor. Reliance was placed on Babu Lal v. Hazari Lal Kishori Lal : AIR 1982 SC 818, Gyasa v. Smt. Risalo : AIR 1977 All. 156, Pt. Balmukund v. Veer Chand : AIR 1954 All. 643, Arjun Singh v. Sahu Maharaj Narain : AIR 1950 All. 415 and Narain Pillai Krishna Pillai v. Ponnuswami Chettiar Subbalakshmi Ammal : AIR 1978 Ker 236. He further urged that in view of Section 54(1)(m) of the Transfer of Property Act the seller was bound to give, on being so required, the buyer or such person as he may direct, such possession of property sold as its nature demands.