KAILASH RAI Vs. HARE RAM DUBEY

JUDGEMENT

(1.) THE decree -holder is the petitioner against the order dated 24.5.2003 passed by the Subordinate Judge VI, Buxar, rejecting the petition for a direction to the judgment -debtor to execute the sale -deed and in case of his failure the court shall execute the sale deed in his favour and, thereafter, to put him in possession, on the ground that no relief has been sought for regarding delivery of possession in the title suit filed by the decree -holder -petitioner.

(2.) THE plaintiff -petitioner filed a suit for specific performance of contract against the defendant -opposite party and specifically prayed therein that the judgment - debtor be directed to execute the sale - deed on the assertion that there was an agreement entered into between the parties and he was willing to perform his part of the contract, but the defendant is not executing the sale -deed. In the relief portion, specific prayer was made to direct the defendant -opposite party to execute the sale -deed and on his failure to execute the sale -deed, the said deed be executed by the court and the possession be also handed over to him. The suit was decreed in terms of the prayer made in the plaint. Thereafter, the judgment debtor has filed an appeal, which is pending.

(3.) A copy of the plaint has been annexed with the Civil Revision. From a perusal of the relief portion of the plaint, it is clear that the possession was also sought for. Thus, the court below was not justified in saying that no prayer for delivery of possession was made. In that view of the matter, the submission advanced on behalf of the opposite party that there was no prayer for delivery of possession in terms of section 22 of the Specific Relief Act (for short the Act) is without any substance. Even if no prayer would have been made, the decree -holder was entitled to be put in possession in view of the admitted fact that the judgment debtor was in possession of the land.