BALIRAM Vs. RAGHUNATH

JUDGEMENT

(1.) Heard.

(2.) The present petition challenges the order dated 13.06.2018 passed by the executing Court in RD No.38 of 2015, whereby the application filed by the decree - holder for issuance of warrant of possession in respect of the subject property, has been allowed, in light of the fact, that the sale deed of the subject property has already been executed and registered in favour of the decree - holder on 07.06.2018 consequent to a decree for specific performance dated 12.10.2010 passed in RCS No.11 of 2008 (Old Spl. C.S. No. 239 of 1995), which decree has attained finality, the first appeal against the same being RCA No.512 of 2010 having been dismissed on 05.07.2014 and thereafter Second Appeal No.472 of 2016 also having been dismissed on 13.12.2016.

(3.) It is contended by Mr. Shukla, learned counsel for the petitioner that the decree in RCS No.11/2008 dated 12.10.2010 did not contain any direction to deliver possession of the suit property. He further submits that such direction, was neither sought for, nor granted in the first appeal as well as the second appeal. He therefore, submits in absence of such a direction in the judgment and decree dated 12.10.2010 it was not permissible for the executing Court to have granted the application for issuance of warrant of possession of the suit property. He places reliance upon Section 22 of the Specific Relief Act and judgment of the Hon'ble Apex Court in the case of Adcon Electronics Pvt. Ltd. vs. Daulat and another, 2001 7 SCC 698 and specifically Paras 16 and 17 to contend that in light of the language of Section 22 of the Specific Relief Act 1963, in case the decree initially granted was not for possession, the relief for possession could only be obtained by way of an application under Section 22 (1)(a) of the Specific Relief Act. He further places reliance upon Sub section 2 of Section 22 of the Specific Relief Act, to contend that a prohibition is imposed in granting the relief of possession under Section 22(1)(a) unless it was specifically claimed. He therefore, submits that this having not been done it was not permissible for the executing Court to grant the application seeking warrant of possession. He therefore, submits that the impugned order clearly suffers from an illegality and thus cannot be sustained in law.