Relief Of Possession Is Ancillary To Decree For Specific Performance And Need Not Be Specifically Claimed; Section 22(2) Specific Relief Act Is Directory : Supreme Court

The Supreme Court held that Section 22(2) of the Specific Relief Act is only directory provision and the relief of possession is ancillary to the decree for specific performance and need not be specifically claimed. 

Section 22 deals with a Court's power to grant relief for possession, partition, refund of earnest money, etc. Section 22(2) ) provides that no relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

In this case, after obtaining a specific performance decree and execution of sale deed, the decree holder filed Execution Petition for directing the judgment debtor to put the decree-holders in possession of the property conveyed. This application was allowed by the Execution court. Later, allowing the petition filed by the Judgment debtor, in which he contended that no decree was granted to the decree holder in respect of delivery of possession and therefore the execution for delivery of possession is not maintainable. The High Court held that without claiming for delivery of possession in a suit for specific performance, there could not be any such order for possession in terms of Section 22 of the Specific Relief Act, 1963. The High Court granted liberty to the appellants to file a separate suit for possession as per the decree passed.

Referring to various judgments of the Supreme Court and High Court, the Apex Court bench observed that even even under the Specific Relief Act, 1877, the position was that the relief of possession is ancillary to the decree for specific performance and need not be specifically claimed. 

Referring to Section 22(2), the bench comprising Justices Hemant Gupta and V. Ramasubramanian observed:

Section 22(2) of the Act, though is worded in negative language, "no relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed", but the proviso takes out the mandatory nature from the substantive provision of sub-section (2) when the plaintiff is allowed to amend the plaint on such terms as may be just for including the plaint for such relief "at any stage of the proceeding". "At any stage of the proceeding" would include the proceeding in suit or in appeal and also in execution. The proviso to sub-section (2) of Section 22 of the Act contemplates that the Court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including a claim for such relief. The said proviso makes the provision directory as no penal consequences follow under sub-section (2) of Section 22. Therefore, sub-section (2) of Section 22 is a rule of prudence to ask for possession "in an appropriate case". The appropriate case would not include a suit for specific performance simpliciter but may include a suit for partition or a suit when the decree is to be executed against a transferee. Sub section (2) cannot be said to be a mandatory provision as the power to claim relief at any stage of the proceeding makes sub-section (2) directory. Sub-section (2) is a matter of procedure to avoid multiplicity of proceedings. The procedural laws are handmaid of justice and cannot defeat the substantive rights.

Holding, thus the bench observed that, in this case, the decree-holder cannot be nonsuited for the reason that such relief was not granted in the decree for specific relief. Allowing the appeal, the court observed:

The defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression "at any stage of proceeding" is wide enough to allow the plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. This Court in Babu Lal has explained the circumstances where relief of possession may be necessary such as in a suit for partition or in a case of separate possession where the property conveyed is a joint property. In the suit for specific performance, the possession is inherent in such suit, therefore, we find that the decree-holders are in fact entitled to possession in pursuance of the sale deed executed in their favor.

Case details

Manickam @ Thandapani vs Vasantha | 2022 LiveLaw (SC) 395 | CA 2726 OF 2022 | 5 April 2022

Coram: Justices Hemant Gupta and V. Ramasubramanian

Counsel: Sr. Adv M.S. Ganesh for appellant, Adv Rakesh Kumar for respondent

Headnotes

Specific Relief Act, 1963; Section 22(2) - Section 22(2) of the Act is only directory - Relief of possession is ancillary to the decree for specific performance and need not be specifically claimed - The expression "at any stage of proceeding" is wide enough to allow the plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. (Para 25 - 30)

Interpretation of Statutes - To examine whether a provision is directory or mandatory, one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. (Para 29)