SWARANALATIKA SARKAR Vs. PRATIVA RANI SARKAR

JUDGEMENT

(1.) This Rule is directed against Order No. 24 dated May 28, 1977 and Order No. 25 dated May 31, 1977 passed in Title Execution Case No. 9 of 1976 by the Munsif, Second Court, Bunkura allowing an application for amendment of the plaint filed by the opposite party. The facts relating to this case arc as follows : The opposite party institued a suit against the petitioner for specific performance of a contract for sale dated July 23, 1966. But she made no prayer for recovery of possession for the said property. The suit was filed on October 2, 1966 and it was dismissed by the trial court on February 29. 1968. On appeal the lower appellate Court decreed the suit on March 12. 1970. Thereafter the petitioner preferred a second appeal to this Court which was dismissed under Order 41, Rule 11 of the C. P. Code on February 4, 1972. The petitioner filed an application for leave to appeal to the Supreme Court and the same Wits rejected on September 7, 1973. The petitioner filed an application for special leave before the Supreme Court and it was, dismissed by the Supreme Court on Sept. 11, 1974. After the appeal was allowed by the lower appellate Court the opposite party put the decree into execution in Title Execution Case No. 40 of 1971 and the kobaia was executed and registered through court on July 29, 1972 and the execution case was disposed of on full satisfaction. Thereafter the opposite party filed a fresh execution case, namely Title Execution Case No. 9 of 1976 for delivery of possession of the suit property. The petitioner filed an objection under Section 47 of the Code of Civil Procedure stating that the petitioner not having asked for delivery of possession in the suit which had been filed by her, there was no direction in the decree for delivery of pos- session. Thereafter the opposite party filed an application for amendment of the plaint on April 2, 1977 seeking to add a prayer for delivery of possession of the suit property. This application was allowed by the executing court on condition of payment of certain costs and the costs having been deposited by the opposite party, the prayer for amendment was finally allowed by the second order which has been challenged in this Rule.

(2.) Mr. Das Gupta, learned Advocate appearing in support of the Rule, has contended that under Section 22 of the Specific Relief Act, 1963 the court is precluded from granting any relief for possession in a suit for specific performance of contract unless such relief has been specifically prayed for. He has contended that the opposite party not having prayed for any relief by way of delivery of possession, the court did not grant her that relief and it is not open to the opposite party to pray for such relief by way of amendment of the plaint at the execution stage and that too by way of an application for second execution when the first execution case had already been disposed of on full satisfaction of the decree which was passed in the suit. The second contention urged by Mr. Das Gupta is that in the present case the decree was passed by the lower appellate court and it was only for that court to make an order for amendment of the plaint, if at all, and in the present case the executing court being the same as the trial court, it was not open to that court to grant the prayer of the opposite party for amendment of the plaint.

(3.) Mr. Chatterjee, learned Advocate for the opposite party, points out that the proviso to Section 22 of the Specific Relief Act provides that "the Court shall, at any stage of the proceeding allow him to amend the plaint" and therefore the court was perfectly justified in the present case in granting the opposite party's prayer for amendment of the plaint.