LOTU BANDU SONAVANE Vs. PUNDALIK NIMBA KOLI

JUDGEMENT

(1.) This revision application arises out of the order dated 18-2-1984 passed by the Joint Civil Judge, (Junior Division), Jalgaon in Regular Darkhast No. 229 of 1981 filed by the petitioner decree-holder against the respondent-judgment debtor for possession of half portion of House No. 37, C.T.S. 1615 of Jalgaon in respect of which a sale deed was executed in favour of the petitioner in pursuance to a decree passed in his favour.

(2.) In the plaint filed by the petitioner no specific prayer for possession was made. The only prayer was for specific performance of the agreement of sale and execution of the sale deed through Court in case the respondent failed to do so. No application for amendment of the plaint was filed by the petitioner even in the Darkhast proceedings and hence in view of sub-section (2) of section 22 of the Specific Relief Act, 1963 the executing Court rejected the prayer of the petitioner for possession of the property. It is this order which is sought to be revised. In this petition the petitioner-decree holder has filed an application for amendment of the plaint in Regular Civil Suit No. 289 of 1974 for including the relief of possession. The respondent remained absent though served.

(3.) Shri A.G. Pawar, the learned Advocate for the petitioner contended that the right to grant possession of the property is a relief, which is incidental to specific performance of the contract of sale which not only includes the execution of necessary documents but also putting the vendee in possession of the property. This contention finds is support in the decisions of the Patna High Court in (Deonandan Prasad Singh v. Janaki Singh)A.I.R. 1920 Patna 89 and (Atal Bihari Acharya v. Barada Prasad Banerji) A.I.R. 1931 Patna 179, (Janardan Kishorilal v. Girdharilal) A.I.R. 1957 Patna 701 and (Parmeshwar Mandal v. Mahendra Nath) A.I.R. 1961 Patna 466. The Calcutta High Court took a similar view in (Kartik Chandra v. Dibakar Bhattacharje) A.I.R. 1952 Cal. 362 and (Subodh Kumar Banerjee v. Hiramani Dasi and others) A.I.R. 1955 Cal. 267. In the first case it was held that the Court while allowing the prayer for specific performance vests the executing Court with all the powers which are required to give full effect to the decree for specific performance. Kartik Chandras case was follows in Subodh Kumars case. In (Pt. Balmukund v. Veer Chand) A.I.R. 1954 All. 643 which followed the earlier decision in (Arjun Singh v. Sahu Maharaj Narain) A.I.R. 1950 All. 415 same view was taken stating that the decree for specific performance which provides that the property shall be sold to the plaintiff by the defendants and the sale deed shall be executed within certain time falling which the Court will have the sale deed executed by a person nominated by it implies that the delivery of possession shall be given in accordance with the provisions of section 55(1)(f) of the Transfer of Property Act. In (Venkatesh v. Parappa) 1966(1) Mys.L.J. 799 the Mysore High Court sustained an order of delivery of possession through the decree for specific performance was passed in general terms. The above stated view was taken by the Madras High Court also in (S.S. Rajbathar v. N.A. Sayyed) A.I.R. 1974 Madras 289. All these decisions were referred to and relied on by a Single Judge of the Kerala High Court in (Narayana Pillai v. Paonnuswami Chettiar) A.I.R. 1978 Kerala 236 on which strong reliance is placed by the petitioner. The learned Judge held :