Case Note & Summary
The petitioner, Ramchandra Guja Rewatkar, filed a writ petition challenging an order of the Executing Court that rejected his application for possession of land pursuant to a decree for specific performance of contract. The petitioner had originally filed Regular Civil Suit No.112 of 1976 seeking specific performance of a contract for sale of agricultural land (Kh.No.807 old, Kh.No.1325/1 new) at mouza Adyal, District Bhandara. The suit was decreed on 14 February 1983. The petitioner then filed Execution Application No.5 of 1989, and a sale deed was executed on 25 November 1992 in his favour. After the sale deed was executed, the petitioner filed a pursis and the execution proceedings were closed. Subsequently, the petitioner filed an application seeking possession of the land, which was rejected by the Executing Court. The petitioner initially challenged this order by filing a Civil Revision Application No.737 of 1999 under Section 115 of the Code of Civil Procedure, 1908. When the revision was listed for final hearing, the respondents raised an objection as to its maintainability. By order dated 4 September 2013, the High Court permitted the petitioner to convert the civil revision into a writ petition, which was renumbered as Writ Petition No.4908 of 2013. The High Court, after hearing the petitioner's counsel (respondents were absent), held that the Executing Court had erred in rejecting the application for possession. The Court observed that once a sale deed is executed in execution of a decree for specific performance, the decree-holder is entitled to possession under Order 21 Rule 35 of the CPC. The Executing Court cannot go behind the decree and must execute it as it stands. The impugned order was set aside, and the Executing Court was directed to restore the execution application to its original number and decide it afresh in accordance with law, after giving an opportunity of hearing to all concerned parties.
Headnote
A) Civil Procedure - Execution of Decree - Possession after Sale Deed - Order 21 Rule 35, Section 47 Code of Civil Procedure, 1908 - The decree-holder obtained a decree for specific performance of contract and sale deed was executed in execution proceedings. The Executing Court rejected the application for possession on the ground that the decree did not specifically grant possession. The High Court held that once a sale deed is executed in execution of a decree for specific performance, the decree-holder is entitled to possession under Order 21 Rule 35 CPC, and the Executing Court cannot go behind the decree. The impugned order was set aside and the Executing Court was directed to restore the execution application and decide it afresh. (Paras 5-7)
Issue of Consideration
Whether the Executing Court was justified in rejecting the application for possession filed by the decree-holder after the sale deed was executed in execution of a decree for specific performance of contract.
Final Decision
The High Court allowed the writ petition, set aside the impugned order of the Executing Court, and directed the Executing Court to restore the execution application to its original number and decide it afresh in accordance with law, after giving an opportunity of hearing to all concerned parties.
Law Points
- Execution of decree
- specific performance
- possession after sale deed
- Order 21 Rule 35 CPC
- Section 47 CPC
Case Details
2014 LawText (BOM) (07) 141
Writ Petition No.4908 of 2013
Shri P.A. Markandeywar for petitioner
Mango Vithya Koche (deceased) and others
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Nature of Litigation
Writ petition challenging the order of the Executing Court rejecting the application for possession filed by the decree-holder after execution of sale deed in a decree for specific performance of contract.
Remedy Sought
The petitioner sought setting aside of the Executing Court's order and direction to grant possession of the suit land.
Filing Reason
The Executing Court rejected the petitioner's application for possession on the ground that the decree did not specifically grant possession.
Previous Decisions
The petitioner had obtained a decree for specific performance of contract on 14 February 1983. Sale deed was executed on 25 November 1992 in execution proceedings. The petitioner's application for possession was rejected by the Executing Court. The petitioner filed Civil Revision Application No.737 of 1999 which was converted into the present writ petition.
Issues
Whether the Executing Court was justified in rejecting the application for possession after the sale deed was executed in execution of a decree for specific performance of contract.
Submissions/Arguments
The petitioner argued that once a sale deed is executed in execution of a decree for specific performance, the decree-holder is entitled to possession under Order 21 Rule 35 CPC, and the Executing Court cannot go behind the decree.
Ratio Decidendi
Once a sale deed is executed in execution of a decree for specific performance of contract, the decree-holder is entitled to possession under Order 21 Rule 35 of the Code of Civil Procedure, 1908. The Executing Court cannot go behind the decree and must execute it as it stands.
Judgment Excerpts
The petitioner has challenged the order passed by the Executing Court rejecting the application filed by the petitioner for grant of possession as per the decree of specific performance of contract, in favour of the petitioner.
The learned Advocate for the petitioner has submitted that the petitioner had filed Regular Civil Suit No.112 of 1976 praying for decree for specific performance of contract... This civil suit is decreed on 14021983.
The petitioner/decree holder had filed the Execution Proceedings vide Application No.5 of 1989 in which the Sale Deed in respect of the suit field was executed on 25111992, pursuant to the above mentioned decree.
The Executing Court has rejected the application for possession on the ground that the decree does not specifically grant possession.
In my view, the Executing Court has erred in rejecting the application for possession. Once the sale deed is executed in execution of the decree for specific performance, the decree-holder is entitled to possession under Order 21 Rule 35 of the Code of Civil Procedure.
The impugned order is unsustainable and is set aside. The Executing Court is directed to restore the execution application to its original number and decide it afresh in accordance with law.
Procedural History
The petitioner filed Regular Civil Suit No.112 of 1976 for specific performance of contract, which was decreed on 14 February 1983. Execution Application No.5 of 1989 was filed, and sale deed was executed on 25 November 1992. The petitioner then filed an application for possession, which was rejected by the Executing Court. The petitioner challenged this order by filing Civil Revision Application No.737 of 1999 under Section 115 CPC. On 4 September 2013, the High Court permitted conversion of the revision into a writ petition, which was renumbered as Writ Petition No.4908 of 2013. The High Court heard the matter and delivered judgment on 9 July 2014.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115, Order 21 Rule 35, Section 47
