Execution Court Can Issue Delivery Warrant For Decreed Suit Property Even If Possession Not Sought In Suit For Specific Performance: Karnataka High Court

A single judge bench of Justice Suraj Govindaraj sitting at Dharwad said, "Such an order would be within the purview of Subsection (3) of Section 28 of the Specific Relief Act, 1963 and would not amount to going beyond the decree for specific performance."

The bench held thus while dismissing a petition filed by one Dada challenging an order passed by the Execution court allowing an application made by the decree holder and issuing a delivery warrant against the judgment debtor in respect of the subject suit property.

Case details:

The respondents (original plaintiffs) had filed a suit against the petitioners herein seeking a decree of specific performance and a direction to the petitioners herein to execute a sale deed in respect of the suit land as per the agreement of sale. The same was decreed vide Judgment dated 26.06.2013 and an application preferred by the petitioners under Order 9 Rule 13 of CPC seeking for setting aside the Judgment also came to be dismissed.

The respondents herein then filed Execution Proceedings. An application was also filed seeking issuance of delivery warrant as regards the possession of the property. The execution court allowed the same.

Aggrieved thereof, instant proceedings were initiated by the original defendants. Advocate Surabhi Kulkarni argued that the impugned order violates principles of natural justice. He submitted that a delivery warrant in respect of possession could not have been issued without a specific prayer having been sought for in the suit. Further, there being no decree directing handing over of possession, issuance of delivery warrant would amount to going beyond the decree which is impermissible.

Advocate Arun P. Bolaji for the Respondent herein argued that there is no requirement as such for a plaintiff in a suit to specifically seek for possession. The execution Court can always in furtherance of getting sale deed executed in favour of the decree holder direct handing over of possession.

Findings:

The bench observed that Section 22(1) of SRA provides the manner and nature of relief that could be sought for by the plaintiff. Section 22(2) provides that the reliefs which have been sought for in sub-clause (a) and (c) of Section 22(1) of the Act cannot be granted unless it has been specifically claimed. The proviso, however, provides an opportunity to the plaintiff to seek the said relief at any stage of the proceedings of the suit if not already sought by way of amendment to include such a claim or relief.

It then observed, "it is clear that unless the relief of possession or partition and separate possession of the property in addition to performance is sought for, no such relief can be granted."

Then the court adverted to Section 28 of the Specific Relief Act and said "A perusal of Sub-section (3) of Section 28 indicates that if the purchaser or lessee pays the purchase money as directed, then such a purchaser would be entitled to the execution of the proper conveyance or lease, delivery of possession or partition and separate possession and further that no separate suit in respect of any relief which could be claimed under the Section would lie at the instance of the vendor, purchaser, lessor or lessee."

Following which it held, "The decree-holder having paid the consideration amount and having complied with the directions issued in the decree, I am of the considered opinion cannot be deprived of possession of the property inasmuch as the mere execution of a sale deed would confer no right on the purchaser/decree holder and the title of the purchaser would only remain on paper without the purchaser being entitled to make use of the property subject matter of the decree, despite having made payment of valuable consideration for the same."

Accordingly it dismissed the petition.

Case Title: DADA S/O BALU ROOGE v. APPASAHEB S/O KIRAN KESTE

Case No: WRIT PETITION NO. 102158 OF 2021

Citation: 2022 LiveLaw (Kar) 238

Date of Order: 16TH DAY OF JUNE, 2022

Appearance: Advocate SURABHI RAVINDRA KULKARNI for petitioners; Advocate ARUN P. BOLAJ, FOR R1 & R2

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