RAM RATAN SINGH Vs. DISTRICT JUDGE SHAHJAHANPUR

JUDGEMENT

(1.) AT the time of hearing of this petition no one appeared on behalf of contesting respondent No. 3. Surajpal Singh, hence only the arguments of learned counsel for the petitioner were heard. Respondent No. 3 filed a suit for specific performance of agreement for sale against the petitioner in the form of O. S. No. 467 of 1983. The suit was decreed by 7th Additional Munsif, Shahjahanpur through judgment and decree dated 12.5.1985 copy of which has not been annexed. However, in para 2 of the writ petition it has been mentioned that the suit was only for specific performance of contract with respect to 1/4 and 1/2 share of the petitioner in agricultural plot Nos. 186 and 187. Appeal against the judgment and decree was also dismissed on 29.7.1986. (Civil Appeal No. 27 of 1986). Thereafter on 31.3.1987 plaintiff respondent No. 3 filed an application for execution of decree before Munsif Shahjahanpur which was registered as Execution Case No. 34 of 1987. In the said execution objections under Section 47, C.P.C. were filed by the petitioner which were rejected on 14.2.1990. Against the said order petitioner filed Civil Revision No. 43 of 1999. The District Judge Shahjahanpur through judgment and order dated 12.3.1991 dismissed the revision hence this writ petition.

(2.) THE first objection was that decree had been passed by 7th Additional Munsif hence execution before the Principal Munsif was not maintainable. In this regard both the courts below held that the Court of 7th Additional Munsif had subsequently been abolished hence application before Principal Munsif was maintainable. THE courts below rightly held that in view of Section 37(b), C.P.C. Court of Munsif Shahjahanpur had jurisdiction to execute the decree. According to the said clause "where the court of first instance has ceased to exist or to have jurisdiction to execute it the Court which if the suit wherein the decree was passed was instituted at the time of making the application for execution of the decree would have jurisdiction to try such suit.

(3.) I do not agree with this observation. Under Section 22 of Specific Relief Act, it is provided that in a suit for specific performance relief for possession can be granted. However, it is further provided that it cannot be granted unless claimed (Section 22 (2)). However, it has further been provided that such a relief can be claimed at any stage of the proceedings by permitting the plaintiff to amend the plaint. In Ex-Servicemen Enterprises v. Sumey Singh, AIR 1976 Del 56, it has been held that relief of possession may be permitted to be added through amendment in the plaint even at the execution stage. The said authority has fully been approved by the Supreme Court in Babu Lal v. M/s. Hazari Lal Kishori Lal, AIR 1982 SC 818. However, in the said authority of the Supreme Court it has been held that if the possession is with the defendants then it may not be necessary to ask for possession. It has further been held that the words in an appropriate case used in Section 22 of Specific Relief Act refer to the situation where possession is with the third party or the suit has been decreed only in respect of share of a co-sharer. Para 14 of the said judgment is quoted below :