SULUGURU VIJAYA Vs. PULUMATI MANJULA

JUDGEMENT

(1.) This Court ordered notice before admission on 30.8.2006 and granted interim stay for a limited period, which is being extended from time to time. Sri M.Rama Krishna, learned counsel entered appearance on behalf of respondent-decree holder.

(2.) Sri K.V.Bhanu Prasad, learned counsel representing the revision petitioners-judgment debtors, would maintain that when the relief of delivery of possession was not specifically prayed for, it is not open to the executing court to order delivery and the same is without jurisdiction. The learned counsel also would contend that unless the plaint and the relief portion are amended in this regard, a decree also cannot be passed relating to delivery of possession and when that being so ordering delivery of possession in such a case cannot be sustained. The learned counsel also would submit that the revision petitioners-judgment debtors had taken an objection by filing E.A.No.221 of 2005 in E.P.No.128 of 2004 under Section 47 read with Section 151 of C.P.C. and the learned II Additional Senior Civil Judge, Warangal, erroneously dismissed the said application. The learned counsel also placed reliance on a decision in ADCON ELECTRONICS PVT. LTD., V. DAULAT And ANOTHER , (2001) 7 Supreme Court Cases 698

(3.) Per contra, Sri M.Rama Krishna, learned counsel representing respondent-decree holder would maintain that when there is a direction to execute sale deed in a suit for specific performance, it implies delivery of possession, as well, since delivery of possession is only ancillary to the execution of the sale deed. The counsel also would maintain when that being so merely because such relief was not specifically prayed for in the plaint, the same cannot be taken advantage of and objection cannot be raised in this regard. The learned counsel also had drawn attention of this court to Section 22 of the Specific Relief Act, 1963, and Section 55 of the Transfer of Property Act, 1882, and would maintain that in the light of the rights and obligations of both the buyer and seller as specified fby the provisions of the Transfer of Property Act, 1882, inasmuch as it is the bounden duty of the seller to deliver possession of the property as well when the execution of the sale deed is ordered by virtue of granting of relief of specific performance, it would imply that delivery of possession as well had been ordered. The counsel also would maintain that this is not a case where any other third party had intervened and when that being so the revision petitioners-judgment debtors are bound to deliver possession of the property, as well, as per Section 55 of the Transfer of Property Act, 1882, and hance cannot raise such an objection with a view to defeat the execution of the decree. The learned counsel also would maintain that the decree may have to be executed in its true letter and spirit. When a decree for specific performance is made, execution of the sale deed and such possession, which is permissible under [law, also may have to be given. The learned counsel also placed reliance on the decisions in S.S. Rajabathar V. N.A.Sayeed ; AIR 1974 MADRAS 289. Mahender Nath Gupta V. M/s. Moti Ram Rattan Chand and another , AIR 1975 OKI .III 155. Lotu Bandu Sonavane V. Pundalik Nimba Koli , ''AIR 1M5HOMHAY412. and Hemchand V. Karilal , AIR 1987 RAJASTIIAN 117