Holding

A decree for specific performance inherently includes the relief of possession, and under Section 22 the court may amend the plaint at any stage, including execution, to grant that relief.

Summary

Babu Lal purchased land from respondents 6‑9, which had earlier been agreed to be sold to respondents 1‑5. The latter sued for specific performance of their contract; the trial court dismissed, but the appellate courts decreed specific performance and ordered the sale deed to be executed in favour of the plaintiffs. The judgment‑debtor, Babu Lal, failed to hand over possession despite an undertaking to demolish his construction if the suit succeeded. The plaintiffs sought execution of the decree for possession. The petitioner objected, arguing that the decree did not expressly grant possession, that Section 22 of the Specific Relief Act required a specific claim for possession, that the Urban Land Ceiling Act permission was lacking, and that the vendors were not properly impleaded. The Supreme Court held that a decree for specific performance includes the incidental right to possession under Section 55 of the Transfer of Property Act, that Section 22 merely allows amendment of the plaint at any stage (including execution) and does not forbid granting possession, and that Section 28 supports delivering possession without a separate suit. Consequently, the High Court’s order granting possession was upheld and the petition for special leave was dismissed.

Issues considered

The scope of a decree for specific performance under the Transfer of Property Act and whether it includes the right to possession.
Whether Section 22 of the Specific Relief Act bars a court from granting possession when the original suit did not specifically claim it.
The applicability of Section 28 of the Specific Relief Act to award possession in execution proceedings.
Whether lack of Urban Land Ceiling Act permission or non‑impleadment of vendors defeats execution of the decree.

Legislation cited

Subjects

specific performancepossessionSection 22Section 28Transfer of Property Actexecution proceedingsamendment of plaintmultiplicity of suitsUrban Land Ceiling Act

Judgment

A'
94
I
BABU LAL
v.

HAZA RI LAL KISH ORI LAL & ORS.
B
January 29, 1982

[A.P. SEN AND R.B. MISRA, JJ.]

Specific Relief Ac.I, sections 22 and 28 read with Section 55 of the Transfer
c of Property Act, scope of-Section 22 of the Specific Relief Act enacts a rule of
pleading in order to avoid mu/tip/i'city ofproceedings-When the court has decreed
the suit for sptcific relief of execution of the agreement to sale of an immovable
property without a separate prayer for possession in the plaint, the decree iJ still I
executable without recourse to another separate suit for possession-Powers of the
High Court to grant the relief in execution application.

D Pursuant to an agreement for sale of certain plots for Rs. 15, 500 M/s.
Hazari Lal Kishori Lal respondent No. 1 atongwith respondents 2 to 5 had paid
a sum of Rs. 1500/- as earnest money to respondents Nos. 6 to 9. The sale deed
was to be executed within 15 days of the agreement. Respondents 6 to 9, how·
ever, executed a sale deed in favour of Habu Lal, the petitioner, in respect of the
same property for Rs. 20,000 on 7th August, 1967. Under ithe circumstances,
respondents 1 to 5 filed a suit (No. 10 of 1968) in tho court of Civil Judge,
E Aligarh, for specific performance of the contract of sale. The petitioner resisted
the claim on the ground that the sale in his favour was in pursuance of a prior
agreement dated 8th July, 1967. During the pendency of the suit, the petitioner
started raising construction on the disputed plot after demolishing the old one.
Respondents I to 5 applied for injunction restraining, the petitioner from doing
so. The petitioner, however, gave an undertaking on 25th. March, 1968, before
the Trial Court that he was making the construction at bis own peril and would
F demolish the same and restore the land to its original position in case the suit of
the plaintiffs was decreed. The trial court dismissed the suit but on appeal the
additional District Judge decreed the suit and in second appeal the High Court
confirmed the judgment and decree Of the First Appellate Court ana directed the
petitioner and respondents 6 to 9 to execute the sale deed in favour of respon-
dents Nos. 1 to 5.

G
The petitioner, however, did not handover possession and remove the
construction raised by him despite his undertaking dated 25th March, 1968. The
decree-holders, therefore, applied for execution of the decree. The judgment~
debtor-petiti_oner filed an objection under section 47 of the Code of Civil Proce·
dure taking all possible pleas to defeat the execution. ·His objections were three~
·H fold : (i) The decree was tnexecutable 'as the decree~holders did not claim a relief
for possession in the suit itself and consequently there was no decree fOr
BABi.JL•L v. HAZARI LAL 95
Possession with the result that the application for execution by delivery of posses· A
sion was Hable to be dismissed in view of sect~on 22 (2) of the Specific Relief Actj
(ii) the Urban Land Ceiling Act having come into force it was incumbent on the
decree-holders to obtain thC permission as required under sections 26 and 27 of the
· CeiJin~ Act and in the absence of a,ny such permission the application for execu·
tion was not maintainable; and (iii) the vendors were not impleaded as parties
originally and they were impleaded as parties only after the coUrt had directed the
vendors to execute the sale deed. As the vendors were not partieS in the execu- B
tion application it was not maintainable and it was not open to the execution
court to implead a person who was not originally impleaded in the application.
The execution court allowed the objection of the judgment debtor in part inas·
much as it directed the execution of the sale deed in pursuance of the decree. It,
however, refused to grant the relief of possession with the observatioi:i that the
remedy of the decree.holders for possession was by means of a separate suit and
not by execution proceedings. Objections (ii) and (iii) were overruled .. The
order of the execution court was confirmed in appeal by the First Additional
District Judge. Aligarh, dated 21st of February, 1977. The High Court allowed
the appeal of the decree-holders and modified the order of the court below to the
effect that the decree·holders shall be entitJed to possession also. Hence the peti·
tion by special leave by judgment debtor·petitioner.

Dismissing the petition, the Court. D
HELD : 1. A decree for specific performance of a contract includes
everything incidental tc be don~ by one party or another to co1np!ete the sale
transaction, the rights and obligations of the parties in such a matter being gover~
ned by section 55 of the Transfer of Property Act. (1031'-G]
E
Kartik Chandra Pal v. Dibakar Bhattaeharjee. A.I.R. 1952 Cal. 362;
Hakim Enayat Ullah v. Khalil Ullah Khan & Anr., · A.J.R.; 19J8 All. 432; Ranjit
Singh v. Kalidasi J)evi, 37 Cal. 57; Madanmohan Singh v. Gaja Prasad Singh, 14
C.L.J. 159; Dtonandan Prasad v. Janki Singh. 5 Pat. L.J. 314; Atal Behary v.
Barada Prasad, A.l.R. 1931 Pat. 179; Balmukand v. Veer Ch~nd, A.T.R. [1954]
All. 643; Janardan Kishore v. Girdhari Lal, A.J.R.1957 Pat. 701; Subodh Kumar
v. Hiramoni Dasi,'A.I.R. 1955 Cal. 267; Mohammed Ali Abdul Chanimomin v. F
Bi.lhemi Kom Abdulla Saheb Momin & Anr., A.I.R: 1973 Mysore 131,
discussed.

2:1. Section 22 enacts a rule of plea4ing. The purpose of 5ection 22 is
to avoid multiplicity of suits and to enable the plaintiff to claim a decree for
possession in a suit for specific performance without being hampered by procedu·
G
rat cOmplications, even though strictly speaking, the right to possession accrues
only when suit for specific perfornl3.nce is decreed, and empowers the cofirt to
provide in the decree itself that upon payment by the plaintiff of the consici~ration
money within ihe given time, the defendant should execute the deed and put the
plaintiff in possession. [104 E-F]
H
2:2. Though sub-section (2) of section 22 recognised in clear terms the
well-established rule or procedure that the court should not entertain a ~!aim of
96 SUPREME COURT lEPoRTS [1982] 3 s.c.B..
A the plaintiff unless it bas been ~pecifica!ly pleaded by the plaintiff and
proved by him to be Jegally entitled to, by its proviso it provides that where
the plaintiff has not specifically claimed appropriate reliefs like possession,
partition or separate possession including the Specific performance in bis
plaint, in the initial stages of the suit, the court shall permit the plaintiff at any
stage of the proce~dings, to include one or more of the said reliefs, by means of
an amendment of the plaint on such terms as it may deem proper. (105 A~C]
B '
Mahender Nath Gupta v. M/s. Moti Ram Rattan Chand & Anr., A.LR. \-
1975· Delhi 155; M/s. Ex.Servicemen Enterprises (P) Ltd. v. Sumey Singh,
A.l.R. 1976 Delhi 56; Rameshwar Nath v. UP. Union Bank, A.J.R. 1956 All.
586, approved.

c 2:3. The expression "in an appropriate case" only indicates that it is
not always incumbent on the plaintiff to claim possessiori or partition or separate
possession in a suit for specific perforn1ance of a contract for the transfer of the
immoveable property. That has to be done where the circumstances demanding
the relief for specific performance of the contract of sale embraced within its
atribit not only the execution of the sale deed but also possession over the pro
perty conveyed under the sale deed. It may not always be necessary for the
plaintiff to specifically claim possession over the property, the relief of possession
D being inherent in the re1ief for specific performance of the contract of sale.
Besides, the proviso to sub~section (2) of section 22 provides for amendment of
the plaint on such terms as may be just for includ).ng a claim for such relief "at
any stage of the proceedings". [106 G-H, 107 A-Bl

2:4. The term ''proceedings'' is a very comprehensive term and generally
E speaking means a prescribed course of action for enforcing a Jegal right. It is not
a technical expreS!ion with a definite meaning attached to it, but one the ambit
of whose meaning will be governed by the statute. It indicates a prescribed mode
in which judicial business is conducted. The word ''proceediilg" in section 22
includes execution proceedings also. It is 8. term giving the widest freedom to a
court of Jaw so that it may do justice to the parties in the case. Execution is a
stage in the legal proceedings. It is a step in the judicial process. It- marks a
F stage in litigation. Ii is a step in the ladder. In the journey of litigation there
are various stages. One of them is execution. The Legislature bas given ample
power to the court to allow amendment of the plaint at any stage, including the
execution proceedings. In the instant case, the High Court rightly granted the
relief of possession. [107 C-E. 109 B-CJ

G Rameswar Nath v.'Uttar Pradesh Union Bank, A.l.R. 1956 AU. 586;
Mahender Nath Gupta v. M/s. Moti Ram Rattan Chand & Anr., A".I.R. 1975
Delhi 155; Ba/mukand v. Ve., Chand, A.l.R. 1954 All. 643; M/s. &-Servic.men
Enterprises (P) Ltd. v. Sumey Singh, AI.R. 1976 Delhi 56, approved.

3:1. If once the legal position is accepted that neither a contract for sale
H nor a decree passed on that basis for specific perfOrmance of the contract gives
any right or title to the decree~holder and the_ right and the title passes to him
only on the execution of the deed of sale either by the judsment-debtor himseff or

· .· .'
•
~

At:
liAllULAL v. HAZAill LAL 91
by the court itself in case he fails to execute the sale deed, no valuable right can A
be said to have accrued to the petitioner judgment·debtor by lapse of tiine,
merely because a decree has been passed for the specific performance of the con.
tract. The limitation would start against the decree.holders only after they had
obtained a sal.! in respect of the disputed property. Section 22 has been enacted
only for the purpose of avoiding multiplicity of proceedings which the law courts
always abhor. [109 D·F]
B
3:2. The only amendment to be made in the plaint was to add a relief
for possession necessitated because of the provisions of section 22, which is only
an enabling provision. In the instant case, the objection of the petitioner requir-
ing the decree-holders to file a separate suit for possession is hyper-technical.
The-execution court has every jurisdiction to allow the amendment. _The mere
omission of the High Court to allow an amendment in the plaint is not so fatal as
to deprive the decree-holders of the benefits of the decree when section 55 of the
c
Transfer of Property Act authorises the transferee to get possession Jn pursuance
of a sale deed. It was open to the Court to allow an amendment, on the basis of
section 22 indeed, it bas allowed delivery of possession i.Q pursuance of the decree
passed in the case. [109 F-G, H, 110 A·B, El

3:3. Further, sub-section (3) of section 28 clearly contemplates that if the D
purchaser or lessee pays the purchase n1oney or other sum which be is ordered to
pay under the decree, the Court may on .application made in the same suit, award
the purchaser or lessee such further relief as he may be entitled to. Sub-clause
(b) of sub-section (3) of section 28 contemplates tho delivery of possession or
partition and separate possession of-the property on the execution· of such conve-
yance or lease. Sub-section (4) of section 28 bars the filing of a separate suit for
any relief which may be claimed under .section 28. [112 A·C]

3:4. The High Court had amended the decree passed by the first appe-
llate court and passed a decree for possession not only.against the transferors
but also against their transferc~, that is, the petitioner. A court which passes a
decree for specific performance retains control over the decree even after the
decree has been passed .. Procedure is meant to advance the cause of justice and
not to retard it. [112 G-H, 113 A] '
Hungerford IW1estment Trust Ltd. v. Haridas MundhraJ & Ors., A.I.R.
1972 S.C. 1826, reiterated.

' G
C1YIL A,PPELLATE JuRts1>tcT10N : Petition for Special Leave
to Appeal (Civil) No. 7771 of 1981.

From the Judgment and order dated the 2nd September, 1981 H
of the Allahabad High Court in Execution second Appeal Nos. 1001
& 1720 of 1977 and Civil Revision No. 1447 of 1978.
SUPREME cOURT REi>bRts (1982] 3 s.c.i.
A R.K. Jain for the Petitioner.
Mrs. S. Bhandare for the Respondent.

The Judgment of the Court was deliv.ered by
..
8 MISRA J. This is a petition for special leave to appeal
against the judgment and order dated 2nd of September, 1981 pas-
sed by the High Court of Judicature at Allahabad disposing of
Execution Second Appeal No. )001 and 1720 of 1977 and Civil
Revision No. 1447 of 1978. The petition was heard on 7th of
December, 1981 at some length and after hearing the counsel for
the parties we dismissed the same for reasons to be recorded later.
We now proceed to give the reasons.

The present petition is a typical ex amp le of the desperate
effort of the judgment debtor to ward off the execution of the decree
D till the bailiff knocks at the door. Respondents Nos. i; to 9 entered
into.an agreement with respondents Nos. I to 5 on 30th of July,
1967 for sale of certain plots situate behind their ~hop for
Rs. I 5,500. Respondents Nos. I to 5 had paid a sum of Rs. I ,500
as earnest ·money pursuant to the agreement. The sale deed was
agreed to be executed within fifteen days of the agreement. Res-
E pondents Nos. 6 to 9, however, executed a sale deed in favour of
the petitioner Babu Lal in respect of the same property for
Rs. 20,000 on 7th of August, 1967 in defiance of the earlier
agreement dated 30th of July, 1967. · Under the circumstances res-
pondents Nos. 1 to 5 were obliged to file a suit which was later on
numbered as suit No. IO of 1968 in the Crnrt of Civil Judge,
F Aligarh for specific performance of the contract of sale. The peti- ·
tioner resisted the claim on the ground that the sale in his favour
was in pursuance of a prior agreement dated 8th of July, 1967. It
appears that during the pendency of the suit the petitioner started
construction on the disputed plot after demolishing the old cons-
G truction.· The plaintiffs, therefore, filed an application for an in-
junction restraining the petitioner from making any construction.
The petitioner, however, gave· an undertaking on 25th of March,
1968 that he was making the construction at his own peril and
would demolish the construction and restore the land to its original
H position in case the suit of the plaintiffs was decreed. It appears
that on the undertaking given by the petitioner the application for
injunction was dismissed. The trial court dismissed the suit but on
BABilLAL v. HAZARILAL (Misra, J.) 99
-+ appeal the Addi. District Judge decreed the suit. In Second
A
Appeal the High Court confirmed the judgment and
decree of the first appellate conrt with a slight modification inas'
much as the High Court directed the petitioner and respondent
Nos. 6 to 9 to execute the sale deed in favour of the respondents
Nos. I to 5, to bring it in line with the decision of the Supreme B
Court in Lala Durga Prasad & Anr. v. Lala Deep Chand & Ors. (1)
wherein it was held :

"Ill a suit instituted by a purchaser against the
vendor and a subsequent .purchaser for specific perfor-
mance of the contract of sale, if the plaintiff succeeds, the
proper form of the decree to be pass~d is to direct specific
c
performance of the contract between the vendor and the
plaintiff and direct the subsequent transferee to join in the.
conveyance so as to pass on the title which resides in him
to the plaintiff."

The petitioner, however, did not handover possession and
D
remove constru"tion ·raised by him .despite his undertaking dated
25th. .of March, 1968. The decree holders, therefore, applied for
._

execution of the. decree. The judgment;debtor-petitioner filed an
objection under section 47 of the Code of Civil Procedure taking
all possible pleas to defeat the execution. His objectisms were
three·fold : (!) The decree was inexecutable as the decree-holders
did not claim a relief for possession in the suit itself and conse-
quently there was no decree for possession. The application for exe·
cution by delivery of possession was liable to be dismissed on this
score alone in view' of section 22(2) of the· Specific Relief Act. · (2)
The Urban Land Ceiling Act having come into foree it was inctiin- F
bent on the decree-holders to obtain the permission as required
under sections 26 and 27 of that Act and in the absence of any
such permission the application for execution was not maintainable.
(3) The vendors were not implell:ded as parties originally and they
were impleaded as parties only after. the court .had directed the
vendors to execute th~ sale deed in S:cond Appeal. As the .ven- G
dors were not parties in the execution application it was not
maintainable and it was not open to the execution court
to implead _.a person who was not ·originally impleaded
in the application. The execution court allowed the objection
H
(I) [1954] SCR 360.
100 StiPlll!MJ! Cotiilt ilBPoRts t1982) j s.e.lt.
of the judgme11t-debtor in part inasmuch as it directed -r.
the execution . of the sale deed in pursuance of the decree. It,
however, refused to grant the relief of possession with the obser-
vation that the remedy of the decree-holders for possession was
by means of a separate suit and not the execution proceedings. The
other two objection were, however, overruled. The order of the
B execution court was confirmed in appeal by the First Addi. District
Judge, Aligarh dated 21st of February, 1977. This order gave rise
to two appeals, one by the judgment-debtor, being appeal No. 1720
of 1977, and the other by the decree-holders, being execution
second appeal No. 1001 of 1977 to the extent the order went against
them. There was yet another revision filed by the judgment·debtor-
c petitioner, being civil revision No. 1447 of 1978 against the order
dated 15th of March, 1978 whereby the judgment-debtor was
directed to execute ,a sale deed in ·favour of the decree-
holders without obtaining permission . from the Urban Land Ceiling
Authorities under sections 26 and 27 of the Act. The appeal as
D well as the revision filed by the judgment-debtor were dismissed
while the appeal of the decree-holders was allowed and the order
of the courts below was modified to the effect that the decree-hol-
ders shall be entitled to possession also. The judgment-debtor-
petitioner has now come to· this Court to seek permission to file
an appeal against the judgment of the High Court dated 2nd of
E September, 1981. .

Only one contention has been raised on behalf of the peti-
tioiier by Mr. Shanti Bhushan, senior counsel, that the High Court
F cou\d not grant relief in execution application in excess of and out-
side the framework of the prayer by the· plaintiffs in
the original main suit. As a second limb . to this argument it was
further contended that the High Court has acted in flagrant viola-
tion of the provisions of section 22 of the Specific Relief Act in
granting the relief of possession. In substance, the main plank of
G the contention of the petitioner is based on section 22 of the Speci·
fie Relief Act. As it stands after amendment of 1963, it reads:

"22( I) Notwithstanding anything to the contrary
contained in the Code of Civil Procedure, 1908 (5 of 1908),
H any person suing for the specific performance of a contract
for the transfer of immovable property may, in an appro-
priate case, ask for-
BABULAL v. HAZARILAL (Misra, J.) 101

(a) possession, or partition · and separate possession, of
A
the property, in addition to such performance; or

(b) any other relief to .which be may be entitled, including
the refund of any earnest money or deposit paid or
made by him, in case his claim for. specific performance
B
is refused.

(2) No relief under Cl. (a) or Cl. (b) of sub-section
(1) shall be granted by the Court un~ss it bas been specifi-
cally claimed :

Provided that where the plaintiff has not claimed any
c
such relief in the plaint, the Court shall, at any stage
of the proceeding, allow him to amend the plaint qn
such terms as may be just for including a claim for such
relief.
D
(3) The power of the Court to grant relief under Cl.
(b) of sub-section (I) shall be without prejudice to its power
to award compensation under Sec. 21."

Mr. Shanti Bhushan was laying emphasis on sub-section (2) of
section 22 to contend that the plaintiffs having not claimed any
relief for possession in the suit they cannot claim the same relief at
a subsequent stage. According to him, in face of the clear mandate
of sub-section (2) it was not open to the High Court to have allowed
the relief of possession at the execution stage, and in any case with-
out an amendment of the plant.
F
The contention at the first flush appears to be alluring and
plausible but on a closer scrutiny it cannot be accepted.

It would be appropriate to refer to the state of law as it existed
. prior to the amendment of the Specific Relief Act in 1963. One
view was that the decree-holder does not acquire title or right to G
recover possession . unless a sale deed is executed, in execution of
the decree for specific performance. In Hakim Enayat Ullah v.
Khalil Ullah Khan and Anr.( 1) a Division Bench of the Allahabad
High Court dealing with the question observed :
ff
(I) AIR 1938 All. 432.
102 SUPREME COURT..REPOl!.TS [19821 3 s.c.R.
A "A decree for specific performance only declares the
right· of the decree-holder to have a transfer of the
property covered by the decree executed in his favour. The
decree by itself does not transfer title. That this is so is
apparent from the fact that in order to get title to the
property ihe decree-holder bas to proceed in execution in
.B accordance with the provisions cif 0~21 of the Code. So
long as the sale deed is not executed in favour of the dee.rec
bolder either by the defendant in the suit or by the Court
the title to the property remains vested 'in the defendant
and till the execution of the.sale deed the decree-holder has
no right to the possession of the property. It is only
c the execution of the sale deed that transfers title to the
property."

·1n Karlik Chandra Pal v. Dibakar Bhattacharjee(') a Division
Bench of the Calcutta High Court, however, after reviewing a number
of reported cases, viz., Ranjit Singh v. Kalidasi Devi.(') Madanmohan
D Singh v. Gaja Prasad Singh,(') Deonandan Prasad v. Janki Singh,(')
and Atal Behary v. Barada Prasad,(') observed ;

"It is incontestable that in a suit for specific perfor-
mance of contract for the sale of land it is open to the
plantiff to join in the sale suit two prayers, one for the
E
execution of the deed of transfer and another for recovery
of possession of the land in question.

We ought to remember in this connection that no
special form of decree in a suit for specific performance is
supplied by the Civil Procedure Code. Chapter II, Speci-
F fic Relief Act, deals with the various circumstances under
which a contract may be enforced specifically and where it
cannot be allowed. When a contract. is to be specifically
enforced, it means simply this that when the parties do not
agree to perform the contract mutually the intervention of
G the Court is required and the Court will do all such things
as the parties would have been bound to do had this been

(1) AIR 1952 Cal. 362.
(2) 37 Cal. 57.
H (3) 14 CU 159.
(4)15 Pat.[LJI 314.
(5J:AIR'l931Pat.179,
bABULAL V. HAZARILAL (Misra, J.) 10~

done without the intervention of the Court. A sale of a A
property after payment of the consideration and upon due
execution of the deed of sale presupposes and requires the
vendor to put the purchaser in possession of the property.
It cannot be suggested that when a party comes to Court
for a specific performance of a contract he is to be satisfied
with simply the execution of the document on payment of B
the consideration money. The Ccnrt when allowing the
( prayer for specific performance vests the executing court
with all the powers which are required to give full effect to
the decree for specific performance. By the decree for
specific performance, the court sets out what it finds to be
.the real contract between the parties and declares that c
such a contract exists and it is for the executing court to
do the rest.

In may be noticed further that a decree in a suit f6i'
specific·performance has been considered to be somewhat D
in the nature of preliminary decree which cannot be set out
in the fullest detail all the different steps which are required
to be taken to implement the main portion of the order
directing specifi~ pe~formance of the contract. The execu-
ting court is in such a case vested with authority to issue
necessary directions."

In Balmukand v. Veer Chand(') the decree for specific perfor-
mance of a contract of sale was silent as to the relief of delivery of
possession even though such relief was claimed in the suit. It was
held by the Allahabad High Court tliat the executing court was still
competent to· deliver the possession. It was further held that it F
was not necessary in a suit for specific performance either to separa-
tely claim possession nor was it necessary for the court to pass a
decree for possession. A decree for specific performance of a con-
tract includes everything incidental to be done by one party or
another to complete the sale transaction, the rights and obligations
of the parties in such a matter being. governed by section 55 of the G
transfer of property Act. In Janardan Kishore v. Girdari Lal(') the
Patna High Court took the view that the relief of prossession is
inherent in a relief for specific perform11nce . of contract for lease,

II
(I) A.J.R 1954 All. 643.
(2) A.I.R. 1'157 Pat. 701,
I

104 IUPRBME COURT RBPORTS [1982) 3 s.c:.a.

A and the court executing a decree for specific performan~e of such a
contract can grant possession of the property to the decree-bolder
even though the decree did not provide for delivery of possession.
In Subodh Kumar v. Hiramoni Dasi(') the Calcutta High Court took
a similar view that the right to recover possession springs out of
the contract which was being specifically enforced and not as a result
B of the execution and completion of the conveyance, and as such the
judgment-debtor was bound to deliver possession to the decrec-
holder.

In Mohammed Ali Abdul Chanimomin v. Bishemi Kom Abdulla
Saheb Momin Anr.(') the Mysore High Court observed that the
c liability to deliver possession for specific performance was necessarily
implied in a decree for specific performance directing the defendant
to execute a sale deed on the principle of clause (f) of sub-section
y
(I) of section 55 of the Transfer of p~operty Act, according to which
the liability to deliver possession arises immediately upon execution
of sale deed unless by agreement the date for delivery of possession
D is postponed.

In this state of the law Legislature intervened and on the basis
of the report of the Law Commission enacted section 22 in 1963 as
it stands.
E Section 22 enacts a rule of pleading. The Legislature thought
it will be useful to introduce a rule that in order to avoid mµl!ipli-
city of proceedings the plaintiff may claim a decree for possession in
a suit for specific performance, even though strictly speaking, the
right to possession accrues only when suit for specific performance is
F decreed. The Legislature bas now made a statutory provision enab-
ling the plaintiff to ask for possession in the suit for specific perfor-

l
mance and empowering the ·court to provide in the decree itself that
upon payment by the plaintiif of the consideration money within the
given time, the defendant should execute the deed and put the
~'lain tiff in possession.

G
The section enacts that a person in a suit for specific perfor:
mance of a contract for the transfer of immovable property, may
ask for appropriate reliefs, namely, he may ssk for possession,
or for partition, or for separate possession including the relief
H
(1) A.1.R. 1955 Cal. 267.
(~) A.l.R. 1973 Mysore OJ.
BABULAL v. HAZARILAL (Misra, J.) 105

for specific performanc~. These _reliefs he can claim, not-with- A
standing anything contained in the Code of Civil Procedure,
1908, to the contraty. Sub-section (2) of this section, however,
specifically provides that these reliefs cannot be granted by the
Court, unless they have been expressly Claimed by the plaitiff in the
, · suit. Sub-section (2) of the section recognised in clear terms the
well-established rule of procedure that the court should not entertain B
a claim of the plaintiff unless it has been specifically pleaded by the
plaintiff and proved by him to be legally entitled to. The proviso
to this sub-section (2), however, says that where the plaintiff has not
specifically claimed these reliefs in his plaint, in the initial stage of
the suit, the court shall permit the plaintiff at any stage of the pro-
ceedings, to include one or more of the reliefs, mentioned above by
means of an amendment of the plaint on· such terms as it may deem
proper. The only purpose of this newly enacted provision is to
avoid multiplicity of suits and that the plaintiff may get appropriate
relief without being hampered by procedural complications.

The expression in-sub-section (I) of section 22 'in an appro-
priate case' is very significant, The plaintiff may ask for the relief
of possession or partition or separate possession 'in an appropriate
case'. As pointed out earlier, in view of Order 2, rule 2 of the
Code of Civil Procedure, some doubt was entertained whether the
relief for specific performance and partition and possession could E
be combined in one suit; one view being that the cause of action
for claiming relief for· partition and possession could accrue to the
plaintiff only after he acquired title to the property on the execution
of a sale deed in his favour and since the relief for specific perfor-
mance of the contract for sale was not based on the same cause of
action as the relief for partition and possession, the two reliefs could F
not be combined in one suit. Similarly, as a case may be visualized
where after the contract between the plaintiff and the defendant the
property passed iµ possession of a third person. A mere relief for
specific performance of the contract of sale may not entitle the
plaintiff to obtain possession as against the party in actual posses-
sion of the property. As against. him, a decree for possession must G
be specifically claimed or such a person is not bound by the contract
sought to be enforced. In a case where exclusive possession is with
the contracting party, a decree for specific performance of the
contract of sale simpliciter without specifically providing for delivery
H
of possession, may give complete relief to the decree-holder. In
order to satisfy the decree agaiI\st ~i·m com~letely he ~is bound n,ot

,_
106 SUPREME COURT REPORTS (1982} 3 s.c.R.

A only to execute the sale-deed but also to put the property in posses-
sion of the decree-holder. This is no consonance with the provision
of section 55 (1) of the Transfer of Property Act which provides
that the seller is bound to give, on being so required, the buyer or
such person as he directs, such possession of the property as its
nature admits.
B
There may be circumstances in which a relief for possession
cannot be effectively granted to tbe decree-bolder without specifically
claiming relief for possession, viz., where the property agreed to be
conveyed is jointly held by the defendant with other persons. In
such a case the plaintiff in order to obtain complete i and effective
c relief must claim partition of the property and possessiou over the
share of the defe;1dant. It is in such cases that a relief for posses-
y
sion must be specifically pleaded.

In the instant case, it is pointed out on behalf of the petitioner
D that the possession was not with the respondents Nos. 6 to 9 but
was with a third person namely, the petitioner, who was subsequent
purchaser and, therefore, this was an appropriate case where the
' relief for possession should have been claimed by the plaintiff-res-
pondents Nos. 1 to 5.

E It may be pointed out that the Additional Civil Judge had
decreed the suit for specific performance of the contract. The High
Court modified decree to the' extent that the sale deed was to be
executed by respondents Nos. 6 to 9 together with the petitioner.
In sbDrt, the decree was passed by the High Court not only against
respondents Nos. 6 to 9 but also against the subsequent purchaser
F i.e .. the petitioner and thus the petitioner was himself the judgrnent-
debtor and it cannot be said that he was a third person in possessiou
and, therefore, relief fir possession must be claimed. The contention
on behalf of the petitioner is that the relief for possession must be
claimed in a suit for specific performance of a contr~ct in all cases.
This argument ignores the significance of the words 'in an appro-
G
priate case'. The expression only indicates that it is not always
incumbent on the plaintiff to claim possession or partition or
separate possession in a suit for specific performance of a contract
for the transfer of the immovable prnperty. That has to be done
H where the circumstances demanding the relief for specific perfor-
mance of the contract of sale embraced within its ambit not only the
execution of the sale deed but also possessiol\ over the proper!¥
BABULAL v. RAZARILAL (Misra, J.) 107

conveyed under the sale deed. It may not always be necessary for A
the plaintiff to specifically claim possession over the property, the
relief of possession being inherent in the relief for specific perfor-
mance of the contract of sale. Besides, the proviso to sub-section
(2) of section 22 provides for amendment of the plaint on such terms
as may be just for i!Jcluding a claim for such relief 'at any stage of
the proceedings'.
B

The word 'proceeding' is not defined in the Act. Shorter
Oxford Dictionary defines it as "carrying on of an action at law,
a legal action or process, any act done by authority of a court of
law; any step taken in a cause by either party". The term 'procee- c
ding' is a very comprehensive term and generally speaking means a
prescribed course of action for enforcing a legal right. It is not a
technical expression with a definite meaning attached to it, but one
the ambit of whose meaning will be governed by the statute .• It
indicates a prescribed mode in which judicial business is c'onducted.
The word 'proceeding'· in section 22 includes execution proceedings D
also. In Rameshwar Nath v. Uttar Pradesh Union Bank(') such a
view was taken. It is a term giving the widest freedom to a court
of law so that it may do justice to the parties in the case. Execution
is a stage in the legal proceedings. It is a step in the judicial
process. It makes a stage in litigation. It is a step in the ladder.
In the journey of litigation there are various stages. One of them
E
is execution.

Io Mahender Nath Gupta v. M/s. Moti Ram Rattan Chand and
Anr.( 2) the Delhi High Court endorsed the view taken in Balmukand
v. Veer Chand (supra) that where in a suit for specific performance
F
of the contract for' sale relief for possession is not claimed and
consequently the decree passed in the suit contains no relief for
delivery of possession, the court executing the decree is competent
to deliver possession, an order directing delivery of possession being
merely incidental to the execution of the deed of sale. The court.
however, observed that on March l, 1964 Specific Relief Act of 1963
came into force and this Act altered the law by enacting section 22.
G
It made it necessary for the plantiff to ask specifically the relief of
possession in suits for specific performance. The Court, however,
held that section 22 of the Specific Relief Act of 19(i3 had no appli·
H
'-<: (I) AJ.R. 1956 All. 586.
(Z) A.IR. 1955 Delhi 155.
108 SUPRBME COURT REPORTS (1982] 3 s.c.R.

A cation to that case as the decree was passed when the old Act was
in force.

The same High Court, however. in M/s. Ex-Servicemen Enter-
prises (P) Ltd. v. Sumey Singh(') considered the effect of section 22
(2) with its proviso. In that case the decree did not give the plaintiff
B the relief of possession. The question arose : Was the Court
powerless to put him in possession of the property though he had }--
a decree for specific performance ia his favour? The Delhi High
Court observed :

''Section 22 enacts a rule of pleading. The legislature
c thought it will be useful to introduce a rule that in order
to avoid multiplicity of proceedings the plaintiff may claim
a decree for possession in a suit for specific performance
even though strictly speaking the right to possession accrues
only when specific performance-is decreed. The legislature
D bas now made a statutory provision enabling the plaintiff
to ask for possession in the suit for specific performance
and empowering the court to provide in the decree itself
~bat upon payment by the plaintiff of the consideration
money within the given time the defendant should execute
the deed and put the plaintiff in possession.
E
In my opinion the proviso gives ample power to a
court to allow the amendment of the plaint even at this
stage. The proviso says that the amendment of the plaint
can be allowed "at any stage of the proceedings" on such
'terms as may be just for including a claim for possession
F where the plaintiff has not claime.d such relief in his origi-
nal plaint. ·

The term "proceeding" is a very comprehensive term
and generally speaking means a prescribed course of action
G for enforcing a legal right. It is not a technical expression
with a definite meaning attached to it, but one the ambit
of whose meaning will be goveraod by the statute. It
indicates a prescribed mode in which Judicial business is
conducted.
H
(I) A.I.R. 1976_Delhi 561
BAliULAL v. HAZARILAL (Misra, J.) 109

The word "proceeding" in Section 22 in my opinion A
includes execution proceedings also."

The High Court had relied upon Rameshwar Nath v. UP Union
Bank (Supra) for its decision in this case. We are in complete agree-
ment with the view taken by the Delhi High Court on this case.

It is thus clear that the Legislature ha~ given ample power to
the court to allow amendment of the plaint at any stage, including
the execution proceedings. In the instant case the High Court
granted the relief of possession and the objection raised on behalf
of the petitioner is that this was not possible at the execution stage
and in any case the Court should have allowed first an amendment c
in the plaint and then an opportunity should have been afforded to
the petitioner to file an objection.

If once we accept the legal position that neither a contract
for sale nor a decree passed on that basis for specific performance
D
of the contract gives any right or title to the decree-holder and the
right and the title passess to him only on the execution of the deed
of sale either by the judgment-debtor himself or by the Court itself
in case he fails to execute the sale deed, it is idle to contend that a.
valuable right had accrued to the petitioner merely because a decree
bas been passed for the specific performance of the contract. The E
limitation would start against the decree-holders only after they had
)
o;>btained a sale in respect of the disputed property. It is, t.herefore,
difficult to accept that a valuable right had accrued to the judgment
debtor by lapse of time. Section 22 has been enacted o nly for the
purpose of avoiding multiplicity of proceedings which the law courts
always abhor. F

The only amendment to be made in the plaint was to add a
relief for possession necessitated because of the provisions of section
22, which is only an enabling provision.
G
There has been a protracted litigation and it has dragged on
practically for about 13 years and it will be really a travesty of
justice to ask the decree-holders to file a separate suit for possession
The objection of the petitidner is hyper-technical. The execution
court has every jurisdiction to allow the amendment. The only H
difficulty is that instead of granting a relief of possession the High
Court should have allowed an amendment in the J?laint. The mere
!10 SUPREME cob&t RBrollTS [1982] :i s.c.ii;

A omission of the High Court to allow an amendment in the plaint is
not so fatal as to deprive the decree-holders of the benefits of the
decree when section 55 of the Transfer of property Act authorises
the transferee to get possession in pursuance of a sale deed.

As pointed out in the earlier part of the judgment, the peti-
B tioner bad started construction and, therefore, the decree-holders
sought to injunct him from making construction on the disputed land
but they were lulled by undertaking given by the petitioner that he
would demolish the construction and restore the land to its original
position in case the suit for specific performance was decreed. The
undertaking given no doubt is a clever undertaking, but that might
c have given an impression to the plaintiffs-decree-holders that in the
event of success of the suit the construction would be demolished and y
they would get back possession. Now the judgment-debtor petitioner
seeks to take advantage of the expression. used in the undertaking
to contend that h~ had undertaken only to demolish the construction
and restore the land to its original position. The contention now
n raised is that the petitioner never gave an undertaking to restore
back possession of the disputed property to the decree-holders.
Indeed, Mr. Shanti Bhushan stated before the Court that he was
-prepared to get the construction demolished but then stops short and
says that possession could not be delivered to)he decree-holders
unless there was an amendment in the plaint. We are not prepared
E
to take such a narrow view of section 22. It was open to the C:iurt
to allow an amendment and the Court on the basis of that section
has allowed delivery of possession in pursuance of the decree passed
in the case.

F Before closing discussion on this point we cann:>t lose sight of
section 28 of the Specific Relief Act, 1963, which reads :

"28. (I) Where in any suit a decree for specific perfor-
mance of a contract for the sale or lease of immovable
G property bas been made and the purchaser or lease does
not, within the period allowed by the decree or such further
period as the Court may allow, pay the purchase-money
or other sum which the Court bas ordered him to pay, the
vendor or lessor may apply in the same suit in which the
H decree is made, to have the contract rescinded and on such
application the Court may, by order, rescind the contract
ilAilULAL v. HAZARILAL'.(Misra, J.) 111

-A
either so far as regards the party in default or altogether,
as the justice of the case may require.

(2) Where a contract is rescinded under sub-section
(1) the Court-
B
(a) shall direct the purchaser or _the lessee, if he has
obtained possession of the property under the
contract, to restore such possession to the vendor
lessor, and
c
(b) may direct payment to the vendor or lessor of all
the rents and profits which have accrued in respect
of the properly from the date on which the posses-
sion was so obtained by the purchaser or lessee
until restoration of possession to the vendor or
lessor, and, if the justice of the cases so requires,
D
the refund of any sum paid by the vendee or
lessee as earnest inoney or deposit in connection
with the contract. "'

(3) If the purchaser or lessee pays the purchase E
money or other sum which· he is ordered to pay under the
decree within the period referred to in sub-section (1), the
'y·
Court may, on application made in the same suit, award
the purchaser or lessee such further relief as he may be
entitled to, including in appropriate cases all or any of the
following reliefs, namely : F

(a) the execution of a proper conveyance or lease by
the vendor or lessor ;

G
(bl the delivery of possession, or partition, and sepa-
rate possession, of the property on the execution
of such conveyance or lease.

H
(4) No separate suit in respect of any relief which
may be claimed under this ·section shall lie at. the instance
i 12 SUPk£ME COURT REPORTS [1982] 3 s.c.R.

A of a vendor, purchaser, lessor or lessee, as the case may
be."

Sub-section (3) of section 28 clearly contemplates that if the
purchaser or lessee pays the purchase money or other sum which be
is ordered to pay . under the decree, the Court may on application
.B made in the same suit, award the purchaser or lessee such further
relief as he may be entitled to. Sub-clause (b) of sub-section (3)
of section 28 contemplates the delivery of possession or partition and
separate possession of the property on the execution of such con-
veyance or lease. Sub-section (4) of section 28 bars the filing of a
separate suit for any relief which may be claimed under this section.
c
In Hungerford Investment Trust Ltd. v. Haridas Mundhra and
Ors.(') dealing with section 28 (l) of the Specific Relief Act, 1963.
this Court observed :

"The Specific Relief Act, 1963, is not an exhaustive
D enactment and under the law relating to specific relief a
Court which passes a decree for specific performance
retains control over the d11eree even after the decree had
been passed. Therefore, the Court, in the present case,
retained control over the matter despite the decree and it
was open to the Court, when it was alleged that the party
E
moved against had positively refused to complete the
contract, to entertain the application and order rescission
of the decree if the allegation was proved."

The reasoning given by this Court with regard to the applica-
F bility of sub-section (!) of section 28 will equally apply to the appli-
capability of rnb-section (3) of section 28.

This is an additional reason why this Court should not inter-
fere with the eminently just order of the High Court. The High
Court had amended the decree passed by the first appellate court
G and passed a decree for possession not only against the transferors
but also against their transferee, that is, the petitioner.

Procedure is meant to advance the cause of justice and not to
retard it. The difficulty of the decree-holder starts in getting
H
(I) A.I.R. 1972 S.C. 1826-.
iiAiiutl.l v. HAZARILAL (Misra, i.) 1i3
--\.
A
pos_session in pursua!lce of the decr~e obtained by him. The judg-
ment·debtor tries to thwart the execution by all possible objections.
In the circumstances narrated above, we do not find any fault with
the order passed by the High Court.
,
For the reasons given above the petition for special leave to B
appeal must fail and it was accordingly dismissed.

S.R. Petition dismissed.

r