Case Note & Summary
The petitioner, Baliram Kakde, challenged an order dated 13.06.2018 passed by the executing Court in RD No.38 of 2015, which allowed the application filed by the decree-holder, Raghunath Hood, for issuance of a warrant of possession in respect of the subject property. The decree-holder had obtained a decree for specific performance of a contract for sale on 12.10.2010 in RCS No.11 of 2008 (Old Spl. C.S. No.239 of 1995). The decree was confirmed in first appeal (RCA No.512 of 2010) on 05.07.2014 and in second appeal (Second Appeal No.472 of 2016) on 13.12.2016. Consequent to the decree, a sale deed was executed and registered in favour of the decree-holder on 07.06.2018. The petitioner argued that the decree did not contain any direction to deliver possession, and therefore, the executing court could not issue a warrant of possession. The petitioner relied on Section 22 of the Specific Relief Act, 1963, and the Supreme Court judgment in Adcon Electronics Pvt. Ltd. vs. Daulat and another (2001) 7 SCC 698, contending that the relief of possession must be specifically claimed and granted. The court, however, held that a decree for specific performance of a contract for sale of immovable property implicitly includes the right to obtain possession, as possession is a necessary consequence of the transfer of title. The court distinguished Adcon Electronics, noting that in that case, the decree was not for specific performance but for a different relief. The court further held that once the sale deed has been executed and registered, the decree-holder becomes the owner and is entitled to possession. The executing court can issue a warrant of possession under Order 21 Rule 35 of the Code of Civil Procedure, 1908, even if the decree does not expressly mention possession. The court dismissed the petition, upholding the order of the executing court.
Headnote
A) Specific Relief Act - Section 22 - Decree for Specific Performance - Possession - A decree for specific performance of a contract for sale of immovable property implicitly includes the right to obtain possession, even if not expressly stated, as possession is a necessary consequence of the transfer of title. The executing court can issue a warrant of possession after the sale deed is executed, and the decree-holder need not file a separate application under Section 22(1)(a) if the decree has become final and the sale deed has been executed. (Paras 4-6)
B) Civil Procedure Code, 1908 - Order 21 Rule 35 - Execution of Decree - Possession - Where a decree for specific performance has been executed by registration of a sale deed, the decree-holder is entitled to possession of the property, and the executing court can direct delivery of possession under Order 21 Rule 35, even if the decree does not expressly mention possession. (Paras 4-6)
C) Specific Relief Act, 1963 - Section 22(2) - Prohibition - The prohibition under Section 22(2) against granting possession unless specifically claimed applies only at the stage of the decree, not at the execution stage after the decree has become final and the sale deed has been executed. (Para 5)
Issue of Consideration
Whether a decree for specific performance of a contract for sale of immovable property, which does not expressly direct delivery of possession, can be executed by issuance of a warrant of possession, and whether the executing court can grant such relief in the absence of a specific claim under Section 22 of the Specific Relief Act, 1963.
Final Decision
The petition is dismissed. The order dated 13.06.2018 passed by the executing court in RD No.38 of 2015 is upheld. No order as to costs.
Law Points
- Specific performance decree implicitly includes possession
- Section 22 Specific Relief Act
- 1963
- executing court's power to issue warrant of possession
- decree for specific performance includes possession by necessary implication
Case Details
2020 LawText (BOM) (02) 131
Writ Petition No.5129 of 2018
Shri A. S. Shukla for petitioner, Shri Kuldeep P. Mahalle for respondent
Baliram S/o Tulsiram Kakde
Raghunath S/o Bhagwanji Hood
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition challenging the order of the executing court allowing issuance of warrant of possession in execution of a decree for specific performance.
Remedy Sought
The petitioner sought to quash the order dated 13.06.2018 passed by the executing court in RD No.38 of 2015, which allowed the decree-holder's application for issuance of warrant of possession.
Filing Reason
The petitioner contended that the decree for specific performance did not contain any direction to deliver possession, and therefore, the executing court could not issue a warrant of possession.
Previous Decisions
The decree for specific performance was passed on 12.10.2010 in RCS No.11 of 2008, confirmed in first appeal (RCA No.512 of 2010) on 05.07.2014, and in second appeal (Second Appeal No.472 of 2016) on 13.12.2016. A sale deed was executed and registered in favour of the decree-holder on 07.06.2018.
Issues
Whether a decree for specific performance of a contract for sale of immovable property, which does not expressly direct delivery of possession, can be executed by issuance of a warrant of possession.
Whether the executing court can grant the relief of possession in the absence of a specific claim under Section 22 of the Specific Relief Act, 1963.
Submissions/Arguments
Petitioner argued that the decree did not contain any direction to deliver possession, and such direction was neither sought nor granted in the appeals. Reliance placed on Section 22 of the Specific Relief Act and Adcon Electronics Pvt. Ltd. vs. Daulat and another (2001) 7 SCC 698 to contend that relief of possession must be specifically claimed.
Respondent argued that the decree for specific performance implicitly includes possession, and after execution of the sale deed, the decree-holder is entitled to possession. The executing court can issue warrant of possession under Order 21 Rule 35 CPC.
Ratio Decidendi
A decree for specific performance of a contract for sale of immovable property implicitly includes the right to obtain possession, as possession is a necessary consequence of the transfer of title. Once the sale deed is executed and registered, the decree-holder becomes the owner and is entitled to possession. The executing court can issue a warrant of possession under Order 21 Rule 35 CPC even if the decree does not expressly mention possession. The prohibition under Section 22(2) of the Specific Relief Act applies only at the stage of the decree, not at the execution stage after the decree has become final and the sale deed has been executed.
Judgment Excerpts
A decree for specific performance of a contract for sale of immovable property, by necessary implication, includes the right to obtain possession of the property, as possession is a necessary consequence of the transfer of title.
Once the sale deed has been executed and registered in favour of the decree-holder, he becomes the owner of the property and is entitled to possession thereof.
The executing court can issue a warrant of possession under Order 21 Rule 35 of the Code of Civil Procedure, 1908, even if the decree does not expressly mention possession.
Procedural History
The decree for specific performance was passed on 12.10.2010 in RCS No.11 of 2008. The first appeal (RCA No.512 of 2010) was dismissed on 05.07.2014. The second appeal (Second Appeal No.472 of 2016) was dismissed on 13.12.2016. A sale deed was executed and registered in favour of the decree-holder on 07.06.2018. The decree-holder filed an application for issuance of warrant of possession in RD No.38 of 2015, which was allowed on 13.06.2018. The petitioner challenged this order by way of the present writ petition.
Acts & Sections
- Specific Relief Act, 1963: 22, 22(1)(a), 22(2)
- Code of Civil Procedure, 1908: Order 21 Rule 35
