Relief Of Delivery Of Possession Inherent In Relief Of Specific Performance Of Contract Of Sale If Defendant In Exclusive Possession: AP High Court

The Andhra Pradesh High Court recently decided whether a separate relief for delivery of possession is required to be pleaded in a suit for specific performance of contract of sale. While interpreting Section 22 of Specific Relief Act, 1963, it held that relief of delivery of possession is inherent in the relief of specific performance of contract of sale if defendant is in exclusive possession of property.

The Judgment Debtors filed objections that possession could not be delivered as the decree was only for specific performance of contract and there was no decree for delivery of possession.

The Execution Court held that in a suit for specific performance of agreement of sale, specific prayer for delivery of possession is not necessary and the Decree Holder was entitled to order for delivery of possession of schedule property. The present civil revision petition was filed under Section 115 of CPC by the Judgment Debtors challenging the order of the Execution Court.

Contentions of both sides

The counsel for judgment debtor submitted that since the decree was only for specific performance of contract and not for delivery of possession, the Execution Court could not proceed beyond the terms of decree. He placed reliance on Section 22 of the Specific Relief Act, 1963 which states that the Court shall not grant a decree for delivery of possession in a suit for specific performance unless it is specifically prayed for.

On the other hand, counsel for decree holder contended that delivery of possession, pursuant to decree for specific performance of contract, is implied even if a decree for possession is not passed specifically. There is liability on seller under Section 55 of Transfer of Property Act to also deliver possession in decree of specific performance of contract, it was argued.

Observations of the Court

Justice Ravi Nath Tilhari analyzed Section 22 of the Specific Relief Act, 1963 which made it evident that the plaintiff may ask for the relief of possession, partition in a suit for specific performance of contract for transfer of immovable property “in an appropriate case”.

As a consequence, reliance was placed on the Supreme Court decision in Babu Lal v. M/s Hazari Lal Kishori Lal (1982), in which it is held that the expression ‘in an appropriate case’ in Section 22 only indicates that it may not always be necessary for plaintiff to claim possession over property as the relief of possession is inherent in the relief for specific performance of contract of sale. In a case where the property is jointly held by defendant and other persons or the property is in possession of third party, then the plaintiff is required to specifically plead for partition or possession of the property. In Suluguru Vijaya v. Pulumati Manjula (2007), Andhra Pradesh High Court also relied on Babu Lal decision in similar circumstances.

In the present case, Justice Ravi Nath Tilhari observed that it is not a case of seeking delivery of possession from a third party to the agreement of sale nor that for delivery of possession where partition is required to the share of Judgment Debtor. In view of the property being in possession of Judgment Debtor who is the party to agreement to sell, the decree for delivery of possession is inherent in the decree of specific performance of contract. Consequently, the Plaintiff/Decree Holder was not required to claim relief of possession specifically in the plaint, Court held.

Furthermore, with regard to wrong mention of provision in application filed for delivery of possession, the Court held that mere mention of wrong provision did not take away the jurisdiction of Execution Court to execute the decree as it had the jurisdiction under the provisions of Order 21 Rule 35 CPC for execution of decree, for delivery of possession as well.

The civil revision was thus dismissed as the judgment of Execution Court did not suffer from any error of law or of jurisdiction.

Case Title: KV Srinivasulu Naidu & Ors. v. V Bhaskar

Counsel for Petitioners: S Lakshminarayana Reddy

Counsel for Respondents: M Rahul

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