As per case facts, the Petitioner-plaintiff-decree-holder filed a suit for specific performance which was decreed, and the appeal was dismissed. During execution, the Respondent-defendant filed objections, arguing possession was not ...
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-4085-2023 (O&M)
Reserved on: 07.07.2025
Pronounced on :23.07.2025
Jitender …Petitioner
V/s
Kuldeep (since deceased) through LRs and others …Respondents
CORAM : HON’BLE MR. JUSTICE VIKRAM AGGARWAL
Argued by: Mr. Vikram Singh Punia, Advocate and
Mr. Amit Siwach, Advocate, for the petitioner.
Mr. Parveen Sharma, Advocate, for respondent No.1.
None for respondents No.2 and 3 despite service.
***
VIKRAM AGGARWAL, J
The instant revision petition, preferred under Article 227 of the
Constitution of India, assails order dated 16.05.2023 (Annexure P-4) passed
by the Court of Addl. Civil Judge (Sr. Divn.), Sonepat, vide which the
execution petition preferred by the petitioner was dismissed.
2. The question which arises for consideration is as to whether in
a suit for specific performance, wherein the relief of possession had not been
prayed for, could the executing Court have granted possession or would the
plaintiff have to seek amendment and thereafter seek possession or whether
a decree for specific performance would include the relief of possession.
3. The facts, as emanating from the revision petition, are that the
petitioner-Jitender (hereinafter referred to as the “petitioner-plaintiff-decree-
holder”) instituted a suit for specific performance of agreement to sell dated
09.09.2009, stated to have been executed by respondent-defendant No.1
(Kuldeep) in favour of petitioner-plaintiff-decree-holder for sale of a
CR-4085-2023 -2-
residential house/plot measuring 250 sq. yds., comprised in Rectangle and
Killa No.6/18/2 min situated in Village Garhi Brahmnan (known as Shastri
Colony at the time of filing of the suit), Gali No.3, Sonepat, for a total sale
consideration of Rs.30 lakhs. A sum of Rs.13 lakhs was paid as earnest
money and the sale deed was to be registered on or before 08.09.2010. In
July 2010, respondent-defendant No.1 executed a sale deed for 93.33 sq.
yds. in favour of defendants-respondents No.2 and 3 (Prem Singh and
Suresh Kumar) for a sum of Rs.3,73,500/-, which led to the filing of the suit
in August, 2010. The respondents-defendants shall collectively be referred
to as the respondents-defendants-judgment debtors.
3.1 The suit was decreed vide judgment and decree dated
19.01.2017 (Annexure P-5) passed by the Court of Addl. Civil Judge (Sr.
Divn.), Sonepat. A decree for specific performance of agreement to sell was
passed and respondent-defendant No.1 was directed to execute sale deed
qua the suit property on receipt of balance consideration of Rs.17 lakhs.
Further, sale deed dated 23.06.2010 executed by respondent-defendant No.1
in favour of respondents-defendants No.2 and 3 was declared to be null and
void.
3.2 An appeal was preferred by respondent-defendant No.1 only,
wherein respondents-defendants No.2 and 3 were impleaded as proforma
respondents. The said appeal was dismissed by the Court of Addl. District
Judge, Sonepat vide judgment and decree dated 20.08.2018. Notably,
respondents-defendants No.2 and 3 did not contest and were proceeded
against ex parte. Still further, respondents-defendants No.2 and 3 did not
prefer any separate appeal.
3.3 The appeal having been dismissed, an execution application
(Annexure P-1) was moved by the petitioner-plaintiff-decree-holder.
CR-4085-2023 -3-
3.4 During the pendency of the execution petition, an objection
petition was filed by respondent-defendant No.1 (Kuldeep). It was averred
that Kuldeep Singh was not competent to execute any agreement to sell as
his title was defective. It was also mentioned in the objection that sale deed
dated 18.11.2022 had been executed in favour of the decree-holder pursuant
to the suit having been decreed and appeal having been dismissed. It was
further averred that in the alleged agreement to sell dated 09.09.2009, there
were no terms and conditions as regards delivery of possession and,
therefore, the question of delivery of possession in an execution petition did
not arise. It was also averred that no relief of possession had been sought in
the suit nor had any relief regarding possession been granted and only a
decree for specific performance was passed. Under the circumstances, no
warrants of possession could be issued. The last objection that was raised
was that judgment debtors/objectors were not in exclusive possession of the
suit property and, therefore, the question of delivery of exclusive possession
did not arise.
3.5 The objection petition was opposed by way of reply (Annexure
P-3). It was averred that sale deed had already been executed in favour of
the petitioner-plaintiff-decree-holder on the direction of the Court. Other
averments were denied.
4. By way of the impugned order, the execution petition was
disposed of holding that possession could not be given and that the
petitioner-plaintiff-decree-holder should file a suit for possession or a suit
for partition, leading to the filing of the present revision petition.
5. Learned counsel for the parties were heard.
6. Mr. Vikram Singh Punia, learned counsel representing the
petitioner-plaintiff-decree-holder argued first on the issue of maintainability
CR-4085-2023 -4-
of the present revision petition. Learned counsel submitted that since the
objections were not third party objections, the impugned order would not be
appealable and, therefore, the instant revision petition would be
maintainable.
6.1 On merits, learned counsel strenuously urged that the impugned
order is not sustainable. He submitted that pursuant to the judgment and
decree dated 19.01.2017 having been passed, sale deed had already been
executed on 18.11.2022. It was submitted that the executing Court erred in
not ordering the relief of possession. He submitted that the executing Court
wrongly placed reliance upon the judgment of a coordinate Bench in the
case of Jeet Singh V/s Gursewak Singh and others, 2016(1) CCC 560
(P&H) and the judgment of the Hon’ble Supreme Court of India in the case
of Adcon Electronics Pvt. Ltd. V/s Daulat (2001)7 SCC 698. He submitted
that even the judgment of the Hon’ble Supreme Court of India in the case of
Manickam @ Thandapani and another V/s Vasantha, 2022 (3) CCC 103
SC was erroneously relied upon and misinterpreted. Learned counsel
submitted that now the issues stand resolved in view of the judgments of the
Supreme Court of India in the case of Birma Devi and others V/s Subhash
and another (SLP(Civil)-29397-2024, decided on 06.12.2024) and in Rohit
Kochhar V/s Vipul Infrastructue Developers Ltd. and others (SLP (Civil)-
10169-10171-2008, decided on 26.11.2024).
6.2 It was submitted by learned counsel that in view of the
authoritative pronouncements of the Supreme Court of India in the aforesaid
judgments, there would be no requirement of filing a fresh suit for
possession and that the executing Court should have granted the said relief.
CR-4085-2023 -5-
7. Per contra, Mr. Parveen Sharma, learned counsel representing
respondent-defendant No.1 submitted that there is no illegality in the
impugned order.
7.1 Arguing first on the issue of maintainability, learned counsel
submitted that since the execution petition had finally been decided, an
appeal would be maintainable and that the instant revision petition would not
be maintainable.
7.2 On merits, it was submitted that since the land is joint and not
exclusively owned by the respondents-defendants-judgment debtors, the
relief of possession could not have been granted and the only remedy was to
file a suit for possession or a suit for partition. Learned counsel submitted
that under the circumstances, the objections had rightly been dismissed. In
support of his contentions, he placed reliance upon the judgments in the case
of Kanwar Pal V/s Mansa Ram and others, 2017(3) RCR (Civil) 418,
Jaspal Singh V/s Punjab Wakf Board Ambala, 2013(1) RCR (Civil) 585,
Jeet singh V/s Gursewak Singh and others, 2015 (3) RCR (Civil) 82,
Adcon Electronics Pvt. Ltd. V/s Daulat, 2002 (1) RCR (Civil) 806, Kishan
Singh and another V/s Kuldip Singh, 2019 (4) RCR (Civil) 616 and Birma
Devi and others V/s Subhash and another, 2025 (2) RCR (Civil) 70.
7.3 None appeared for respondents No.2 and 3 despite service.
8. I have considered the submissions made by learned counsel for
the parties.
9. Coming first to the issue of maintainability, the objections were
not filed by a third party as a result of which, the same would not be treated
as objections under Order 21 Rule 97, 98 or 103 CPC but would be
objections under Order 21 Rule 35 CPC and, therefore, the order would not
be appealable and the present revision petition would duly be maintainable.
CR-4085-2023 -6-
9.1 Coming to the merits, the suit for specific performance was
decreed on 19.01.2017. Notably, during the trial also, it was argued that a
mere suit for specific performance was not maintainable as the relief of
possession had not been sought. This was turned down by the trial Court
and it was specifically held that where a decree for specific performance is
passed, a decree-holder is entitled to be put in possession of property with
respect to which the suit was decreed even when neither in the judgment nor
in the decree, specific direction to put the decree-holder in possession had
been given;
52. The learned counsel for the defendant no.1 has contended that
the present suit for mere specific performance of contract is not
maintainable because the plaintiff has not sought the relief of possession
in the present suit. The learned counsel for defendant no.1 has relied
upon the case law cited in Jeet Singh Vs. Gursewak Singh and others
2015(2) Civil Court Cases 463 (supra) in this regard. A perusal of the
plaint shows that the plaintiff has filed the present suit seeking a decree
for specific performance with consequential relief of permanent
injunction. It is the settled law that relief of possession is incidental in a
suit for specific performance. The Hon'ble Supreme Court of India in
pase law cited in Babu Lal Vs. M/s Hazari Lal Kishori Lal and others
AIR 1982(SC) 818 has held that it may not always been necessary for the
plaintiff to specifically claim possession over the property and the relief
of possession being inherent in the relief for specific performance of the
contract for sale. The Hon'ble High court of Punjab and Haryana in
case law cited in Makhan Singh and others Vs. Tara Singh and others,
1988 PLR, 479 has held that where a decree for specific performance
was passed, then the decree holder is entitled to be put in possession of
property with respect to which suit was decreed, even when neither in
judgment nor in decree, specific directions to put decree holder in
possession is given. The Hon'ble Rajastan High Court in case law cited
in Lrs. of Bhinva Ram Vs Sohan Ram 2005(3) Civil Court Cases 686 has
held that a suit for specific performance is maintainable without
claiming relief for possession.
53. Hence, the plaintiff is entitled to a decree for specific
performance of the agreement to sell dated 09.09.2009 qua the suit
property measuring 250 square yards on payment of balance sale
consideration of Rs. 17,00,000/- to defendant no.1 as he has already paid
CR-4085-2023 -7-
Rs.13,00,000/- as earnest money to the defendant No.1 vide receipt dated
09.09.2009, Ex.P-2.
xxx xxx xxx
58. In view of the findings given on issues no. 1 and 2, the present
suit filed by the plaintiff succeeds and the same is hereby decreed with
costs. A decree for specific performance of agreement to sell dated
09.09.2009 by directing the defendant no.1 to execute and get registered
the sale deed qua the suit property measuring 250 square yards as
detailed in said agreement in favour of the plaintiff on payment of
balance sale consideration of Rs.17,00,000/- to the defendant no.1 and
the sale deed bearing vashika no.2419 dated 23.06.2010 executed by the
defendant no.1 in favour of the defendants no. 2 and 3 qua the land
measuring 93.33 square yards out of suit property measuring 250 square
yards is illegal, null and void and the same is not binding on the rights of
the plaintiff with consequential relief of permanent injunction
restraining the defendants from alienating and changing nature of the
suit property is passed in favour of the plaintiff and against the
defendants. The defendant no.1 is directed to execute and get registered
the sale-deed qua the suit property measuring 250 square yards in favour
of the plaintiff on receiving the balance sale consideration within a
period of two months from passing of this judgment, failing which the
plaintiff shall be at liberty to approach the executing Court for
compliance. Decree-sheet be prepared accordingly and file be consigned
to the record-room after due compliance.”
9.2 It is, therefore, clear that the trial Court directed respondent-
defendant No.1 to execute registered sale deed qua the suit property in
favour of the petitioner-plaintiff on receipt of balance consideration within a
period of two months from the passing of the judgment. Of course, the trial
Court did not mean that the sale deed be executed but possession be not
delivered. In fact, as already noticed, the issue of possession was raked up
before the trial Court also which was duly answered by the trial Court.
9.3 An appeal was preferred by respondent-defendant No.1 against
the said judgment and decree but the same also came to be dismissed vide
judgment dated 20.08.2018 passed by the Court of Addl. District Judge,
Sonepat.
CR-4085-2023 -8-
9.4 Against the aforesaid decision, a regular second appeal is stated
to be pending but concededly there is no stay. The problems of the
petitioner-plaintiff-decree-holder started after the decisions were rendered in
his favour. The unscrupulous respondents-defendants-JDs started filing
objections raising the same points which had been answered by the Courts.
The executing Court also did not examine the matter from the correct
perspective and simply on the averments made in the objection petition,
decided the same in favour of the objectors and disposed of the execution
petition.
9.5 In fact, the matter now stands settled in view of the judgment of
the Hon’ble Supreme Court of India in Bimla Devi’s case (supra) and Babu
Lal V/s Hazari lal Kishori Lal, (1982) 3 SCR 94.
9.6 In Birma Devi’s case (supra), a suit for specific performance of
an agreement to sell was filed, which was decreed. The original defendant
had sold the suit property to some other persons and it was the subsequent
purchasers who were contesting the execution proceedings, the decree not
having been challenged any further. The executing Court took a view that
although there was a decree for specific performance, it did not say anything
about putting the plaintiffs in possession and, therefore, declined to hand
over possession. The said order was challenged before the High Court,
which allowed the petition and set aside the order of the executing Court and
the executing Court was directed to issue warrants of possession. The matter
reached then reached the Hon’ble Supreme Court of India, wherein after
examining the judgment of Babu Lal (supra) and Rohit Kochhar (supra),
the Supreme Court upheld the order of the High Court;
“12 The short question that falls for our consideration is whether the
relief of possession may be granted by the executing court in a case
where the suit has been decreed for specific performance simpliciter and
CR-4085-2023 -9-
no express relief for the transfer of possession of the suit property has
been granted.
13. The position of law on the issue has been settled by this Court in
the case of Babu Lal v. Hazari Lal Kishori Lal reported in (1982) 1 SCC
525 wherein the Court while elaborating on Section 22 of the Specific
Relief Act, 1963 laid down the law for the following two situations that
may arise:
a. First, in cases where the possession of the suit property is
exclusively with the contracting party, then a decree for specific
performance simpliciter, without specifically providing for
delivery of possession, may give complete relief to the decree
holder. This, the Court held, was in consonance with Section
55(1) of the Transfer of Property Act, 1882, which binds the
seller, on being so required, to transfer to the buyer or such other
person as he directs, such possession of the property as its nature
admits.
b. Secondly, in cases where the relief of possession cannot be
effectively granted to the decree-holder without specifically
claiming relief for possession, for instance, in cases where the
property agreed to be conveyed is jointly held by the defendant
with other persons, or cases where after the contract the property
has passed in possession of a third person, then the plaintiff, in
order to obtain complete and effective relief, must claim the relief
of transfer of possession over the property defendant along with
the relief of partition, etc., if required.
14. For the second category of cases, the Court observed that Section
22, which was introduced by the legislature to avoid multiplicity of
proceedings, allows the plaintiff to amend the plaint to include a claim
for the relief of possession, partition, etc. at any stage of the proceeding.
The Court further held that the expression "any stage of the
proceeding" includes the stage of execution of the decree by the
executing court. The relevant paragraphs from the said decision are
reproduced hereinbelow:
"13. The expression in sub-section (1) of Section 22 "in an
appropriate case" is very significant. The plaintiff may ask for
the relief of possession or partition or separate possession "in an
appropriate case". As pointed out earlier, in view of Order 2 Rule
2 of the Code of Civil Procedure, some doubt was entertained
whether the relief for specific performance and partition and
possession could be combined in one suit; one view being that the
cause of action for claiming relief for partition and possession
could accrue to the plaintiff only after he acquired title to the
CR-4085-2023 -10-
property on the execution of a sale deed in his favour and since
the relief for specific performance of the contract for sale was not
based on the same cause of action as the relief for partition and
possession, the two reliefs could not be combined in one suit.
Similarly, a case may be visualised where after the contract
between the plaintiff and the defendant the property passed in
possession of a third person. A mere relief for specific
performance of the contract of sale may not entitle the plaintiff to
obtain possession against the party in actual possession as of the
property. As against him, a decree for possession must be
specifically claimed or such a person is not bound by the contract
sought to be enforced. In a case where exclusive possession is
with the contracting party, a decree for specific performance of
the contract of sale simpliciter, without specifically providing for
delivery of possession, may give complete relief to the decree-
holder. In order to satisfy the decree against him completely he is
bound not only to execute the sale deed but also to put the
property in possession of the decree-holder. This is in provisions
of Section 55(1) consonance with the of the Transfer of Property
Act which provides that the seller is bound to give, on being so
required, the buyer or such person as he directs, such possession
of the property as its nature admits.
14. There may be circumstances in which a relief for possession
cannot be effectively granted to the decree-holder without
specifically claiming relief for possession viz. where the property
agreed to be conveyed is jointly held by the defendant with other
persons. In such a case the plaintiff in order to obtain complete
and effective relief must claim partition of the property and
possession over the share of the defendant. It is in such cases that
a relief for possession must be specifically pleaded.
xxxx
17. The word "proceeding" is not defined in the Act. Shorter
Oxford Dictionary defines it as "carrying on of an action at law,
a legal action or process, any act done by authority of a court of
law any step taken in a cause by either party". "proceeding is a
very comprehensive The term term and generally speaking means
a prescribed course of action for enforcing a legal right. It is not
a technical with expression definite a meaning attached to it, but
one the ambit of whose meaning will be governed by the statute.
It indicates a prescribed mode in which judicial conducted.
business is The word 'proceeding' in Section 22 includes
execution proceedings also. In Rameshwar Nath v. U.P. Union
CR-4085-2023 -11-
Bank Ltd. (AIR 1956 All 586: 1956 A11 LJ 470: 1956 All WR HC
450] such a view was taken. It is a term giving the widest freedom
to a court of law so that it may do justice to the parties in the
case. Execution is a stage in the legal proceedings. It is a step in
the judicial process. It marks a stage in litigation. It is a step in
the ladder. In the journey of litigation there are various stages.
One of them is execution.
xxxxx
20. It is thus clear that the legislature has given ample power to
the court to allow amendment of the plaint at any stage, including
the execution proceedings. In the instant case the High Court
granted the relief of possession and the objection raised on behalf
of the petitioner is that this was not possible at the execution
stage and in any case the court should have allowed first an
amendment in the plaint and then an opportunity should have
been afforded to the petitioner to file an objection."
15. The aforesaid position of law has been recently reiterated by us in a
recent order passed in the case of Rohit Kochhar v. Vipul Infrastructure
Developers Ltd. & Ors. reported in 2024 INSC 920 wherein we have
observed thus:
"23. This Court in Babu Lal (supra), upon a combined reading of
Sections 22 and 28 (3) of the Specific Relief Act respectively and
Section 55 of the Transfer of Property Act, observed that the it
was only "in an appropriate case" that the plaintiff was required
to separately the seek relief of possession, partition, or separate
possession, as the case may be, along with the relief of specific
performance. The Court observed that in other cases, say for
example a case where the possession of the suit property
exclusive with is the contracting party, a decree for specific
performance of the contract of sale simpliciter, without
specifically providing for delivery of possession, may give
complete relief to the decree-holder. This, the Court observed,
was the mandate flowing from Section 55 of the Transfer of
Property Act."
9.7 In Rohit Kochhar’s case (supra), the judgment of the Supreme
Court of India in the case of Adcon’s case (supra) was also considered and
thereafter, the view was taken which was upheld in Birma Devi’s case
(supra);
CR-4085-2023 -12-
“28. What appears from a close reading of the decision in Adcon
Electronics (supra) is that the decision of this Court in Babu Lal (supra)
was not considered and reliance was placed on the decision of the
Federal Court in Moolji Jaitha (supra) which was rendered in the
context of the old Specific Relief Act. The Federal Court had no
occasion to consider the amended regime brought into being by virtue of
the Specific Relief Act enacted in 1963. The decision in Babu Lal (supra)
took note of the divergent views occupying the field prior to the
enactment of the Specific Relief Act in 1963. The relevant paragraphs
from Babu Lal (supra) wherein the conflict in position of law was noted
are extracted hereinbelow:
"6. It would be appropriate to refer to the state of law as it existed
prior to the amendment of the Specific Relief Act in 1963. One
view was that the decree-holder does not acquire title or right to
recover possession unless a sale deed is executed, in execution of
the decree for specific performance. In Hakim Enayat Ullah v.
Khalil Ullah Khan [AIR 1938 All 432: ILR 1938 All 677: 1938 All
LJ 569: 176 IC 436] a Division Bench of the Allahabad High
Court dealing with the question observed:
"A decree for specific performance only declares the right
of the decree-holder to have a transfer executed in his
favour of the property covered by the decree. The decree
by itself does not transfer title. That this is so is apparent
from the fact that in order to get title to the property the
decree-holder has to proceed in execution in accordance
with the provisions of Order 21 of the Code. So long as the
sale deed is not executed in favour of the decree-holder,
either by the defendant in the suit or by the court, the title
to the property remains vested in the defendant and till the
execution of the sale deed the decree-holder has no right
to the possession of the property. It is only the execution of
the sale deed that transfers title to the property."
7. In Kartik Chandra Pal v. Dibakar Bhattacharjee [AIR
1952 Cal 362: ILR (1950) 1 Cal 350] a Division Bench of the
Calcutta High Court, however, after reviewing a number of
reported cases viz. Ranjit Singh v. Kalidasi Debi [ILR (1910) 37
Cal 57: 14 Cal WN 527: 5 IC 205], Madanmohan Singh v. Gaja
Prasad Singh [(1911) 14 CLJ 159: 11 IC 228], Deonandan
Prasad v. Janki Singh [(1920) 5 Pat LJ 314: 1 Pat LT 325:56 IC
322] and Atal Behary Acharya v. Barada Prasad Banerji [AIR
1931 Pat 179: 12 Pat LT 636: 131 IC 529], observed:
CR-4085-2023 -13-
"...It is incontestable that in a suit for specific
performance of contract for the sale of land it is open to
the plaintiff to join in the same suit two prayers, one for
the execution of the deed of transfer and another for
recovery of possession of the land in question....
***
We ought to remember in this connection that no
special form of decree in a suit for specific performance is
supplied by the Civil Procedure Code. Chapter II, Specific
Relief Act, deals with the various circumstances under
which a contract may be enforced specifically and where it
cannot be allowed. When a contract is to be specifically
enforced, it means simply this that when the parties do not
agree to perform the contract mutually the intervention of
the Court is required and the Court will do all such things
as the parties would have been bound to do had this been
done without the intervention of the Court. A sale of a
property after payment of the consideration and upon due
execution of the deed of sale presupposes and requires the
vendor to put the purchaser in possession of the property.
It cannot be suggested that when a party comes to Court
for the specific performance of a contract he is to be
satisfied with simply the execution of the document on
payment of the consideration money. The Court when
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. By
the decree for specific performance, the Court sets out
what it finds to be the real contract between the parties
and declares that such a contract exists and it is for the
executing court to do the rest.
It may be noticed further that a decree in a suit for
specific performance has been considered to be somewhat
in the nature of preliminary decree which cannot set out
in the fullest detail all the different steps which are
required to be taken to implement the main portion of the
order directing specific performance of the contract. The
executing court is in such a case vested with authority to
issue necessary directions."
8. In Balmukand v. Veer Chand [AIR 1954 All 643: 1954 All
LJ 255 : 1954 All WR (HC) 424] the decree for specific
performance of a contract of sale was silent as to the relief of
CR-4085-2023 -14-
delivery of possession even though such relief was claimed in the
suit. It was held by the Allahabad High Court that the executing
court was still competent to deliver the possession. It was further
held that it was not necessary in a suit for specific performance
either to separately claim possession nor was it necessary for the
court to pass a decree for possession. A decree for specific
performance of a contract includes everything incidental to be
done by one party or another to complete the sale transaction, the
rights and obligations of the parties in such a matter being
governed by Section 55 of the Transfer of Property Act. In
Janardan Kishore v. Girdhari Lal [AIR 1957 Pat 701: 1957 BLJR
368] the Patna High Court took the view that the relief of
possession is inherent in a relief for specific performance of
contract for lease, and the court executing a decree for specific
performance of such a contract can grant possession of the
property to the decree-holder even though the decree did not
provide for delivery of possession. In Subodh Kumar Banerjee v.
Hiramoni Dasi [AIR 1955 Cal 267] the Calcutta High Court took
a similar view that the right to recover possession springs out of
the contract which was being specifically enforced and not as a
result of the execution and completion of the conveyance, and as
such the judgment-debtor was bound to deliver possession to the
decree-holder.
9. In Mohammed Ali Abdul Chanimomin v. Bisahemi Kom
Abdulla Saheb Momin [AIR 1973 Mys 131: (1973) 1 Mvs LJ 130]
the Mysore High Court observed that the liability to deliver
possession for specific performance was necessarily implied in a
decree for specific performance directing the defendant to
execute a sale deed on the principle of clause (f) of sub-section
(1) of Section 55 of the Transfer of Property Act, according to
which the liability to deliver possession arises immediately upon
execution of a sale deed unless by agreement the date for delivery
of possession is postponed.
10. In this state of the law the legislature intervened and on
the basis of the report of the Law Commission enacted Section 22
in 1963 as it stands." (Emphasis supplied)
29. Thus, while the decision in Adcon Electronics (supra) proceeds
on the understanding that a suit for specific performance of an
agreement to sell is an action in personam, the decision in Babu Lal
(supra) takes into account the change brought about by the introduction
of Sections 22 and 28 to the Specific Relief Act, 1963 respectively which
has changed the nature of the relief available under Section 22 by
CR-4085-2023 -15-
allowing the plaintiff to seek the relief of possession, partition, etc.
simultaneously along with the prayer for specific performance.
30. Even otherwise, we are of the view that the decision in Adcon
Electronics (supra), is of no avail to the plaintiff. It was expressly held by
this Court therein that to determine whether a suit is a "suit for land" or
not has to be determined on the basis of the averments made in the plaint
with reference to the reliefs claimed therein. In yet another decision
Excel Dealcomm (P) Ltd. v. Asset Reconstruction Co. (India) Ltd.
reported in (2015) 8 SCC 219 dealing with the meaning of the expression
"suit for land" appearing in Clause 12 of the Letters Patent of the High
Court of Judicature at Calcutta, this Court observed thus:
"13. A suit for land is a suit in which the relief claimed relates to
the title or delivery of possession of land or immovable property
[see Adcon Electronics (P) Ltd. v. Daulat [Adcon Electronics (P)
Ltd. v. Daulat] ). Further, it is an established rule that to
determine whether it is a suit for land, the court will look into
barely the plaint and no other evidence (Indian Mineral &
Chemicals Co. v. Deutsche Bank [(2004) 12 SCC 376]). If by the
averments in the plaint and prayers therein, it appears that the
suit is one for land, it shall be so held and if it does not so appear,
then the suit shall continue under leave granted under Clause 12.
Xxxxx
16. It may be noted that the sale certificate sought under the
prayer requires the delivery of possession of the suit property.
Thus, we find that the prayer for delivery of possession was an
implicit one in the present case. The prayer as sought in the
plaint could not have been granted without the delivery of
possession of the suit property as the sale certificate itself
contemplates the delivery of the immovable property. Thus, in
view of this we find that Adcon Electronics [Adcon Electronics
(P) Ltd. v. Daulat] would not apply as there was a prayer for
delivery of possession in the present case. Therefore, we hold that
the present suit was indeed a suit for land." (Emphasis supplied)
31. Similarly, in Moolji Jaitha (supra), His Lordship Kania, C.J. held
that a Suit as a whole should be taken into consideration to find out
whether it is for the purpose of obtaining a direction for possession or a
decision on title to land, or the object of the Suit is something different
but involves the consideration of the question of title to land indirectly.
His Lordship further held that the nature of the Suit and its purpose
have to be determined by reading the Plaint as a whole and it is not
proper to dissect the prayers and consider whether the Court has
jurisdiction on the limited points. It was further held that the inclusion
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or absence of a prayer is not decisive of the true nature of the Suit, nor is
the order in which the prayers are arrayed in the Plaint. The substance
or object of the Suit has to be gathered from the averments made in the
Plaint and on which the reliefs asked in the prayers were based.”
9.8 It emerges from the aforesaid binding precedents that when a
suit for specific performance of an agreement to sell is filed, the relief of
possession is intrinsic in the same and there would be no logic to institute a
suit for specific performance of an agreement to sell without seeking
possession. In the present case, the trial Court directed the execution of a
sale deed. It cannot, by any stretch of imagination, be held that the direction
to execute the sale deed was to be without possession.
9.9 The stand taken by the objectors that the title was defective or
that the land was joint is devoid of merit, for, no such stand was taken during
the course of the trial. As observed previously, the suit was decreed and the
appeal was dismissed and to raise question of title subsequently and that the
land was joint would not be permitted. Even otherwise, it was a plot situated
in Shastri Colony and, therefore, there is no question of the same being joint.
10. The executing Court took a totally erroneous view of the matter
and disposed of execution petition. The impugned order, in view of the
aforesaid discussion is not sustainable and deserves to be set aside.
11. I have gone through the judgments relied upon by learned
counsel for respondent but in view of the judgments of the Hon’ble Supreme
Court of India in the case of Birma Devi’s case (supra) and in Rohit
Kochhar’s case (supra), the said judgments would not be applicable.
12. While sifting through the record which was duly summoned,
this Court observed that every possible effort was made by the JD to delay
the execution by initially not appearing and getting proceeded ex parte and
subsequently moving applications to set aside those orders, filing objections
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and then delaying the hearing in the objections so forth and so on. It is a
matter of great concern that the decree which was passed on 19.01.2017
remains unexecuted till today.
13. In view of the afore stated facts and circumstances, the present
petition is allowed. The order dated 16.05.2023 (Annexure P-4) passed by
the Court of Addl. Civil Judge (Sr. Divn.), Sonepat is set aside. The
execution petition is allowed and respondents-defendants-judgment debtors
are directed to hand over the possession of the suit property to the petitioner-
plaintiff-decree-holder within a period of one month from today.
Pending application(s), if any, shall also stand disposed of.
(VIKRAM AGGARWAL)
JUDGE
Pronounced on: 23.07.2025
vcgarg
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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