BIRMA DEVI & ORS.versusSUBHASH & ANR.

          [2024] 12 S.C.R. 484 : 2024 INSC 949

                      Birma Devi & Ors.
                             v.
                       Subhash & Anr.
      (Special Leave Petition(Civil) No. 29397 of 2024)
                        06 December 2024
        [J.B. Pardiwala and R. Mahadevan, JJ.]


                     Issue for Consideration
Whether the relief of possession may be granted by the executing
court in a case where the suit has been decreed for specific
performance simpliciter and no express relief for the transfer of
possession of the suit property has been granted.

                            Headnotes†
Specific Relief Act, 1963 – s.22 – Executing court declined
to handover the possession of the suit property to the
respondents-plaintiffs (decree holders) holding that though
there was a decree for specific performance no relief as regards
putting the plaintiffs in possession of the suit property was
granted – Order set aside by High Court – Challenged by
subsequent purchasers:
Held: In cases where the possession of the suit property is
exclusively with the contracting party, then a decree for specific
performance simpliciter, without specifically providing for delivery
of possession, may give complete relief to the decree holder –
However, in cases where the relief of possession cannot be
effectively granted to the decree-holder without specifically claiming
relief for possession, for example, in cases where the property
agreed to be conveyed is jointly held by the defendant with other
persons, or cases where after the contract the property has passed
in possession of a third person, then the plaintiff, in order to obtain
complete and effective relief, must claim the relief of transfer of
possession over the property – Section 22 allows the plaintiff to
amend the plaint to include a claim for the relief of possession,
partition, etc. at “any stage of the proceeding” including the stage
of execution of the decree by the executing court – Special
Leave Petition dismissed – Transfer of Property Act, 1882 – s.55.
[Paras 13, 16]
[2024] 12 S.C.R.                                                           485

                     Birma Devi & Ors. v. Subhash & Anr.


                              Case Law Cited
     Babu Lal v. Hazari Lal Kishori Lal [1982] 3 SCR 94 : (1982) 1
     SCC 525; Rohit Kochhar v. Vipul Infrastructure Developers Ltd.
     & Ors., 2024 INSC 920 – relied on.

                                List of Acts
     Specific Relief Act, 1963; Transfer of Property Act, 1882.

                              List of Keywords
     Agreement of sale; Decree for specific performance; Executing
     court; Relief of possession; Suit decreed for specific performance
     simpliciter; No express relief for the transfer of possession of the
     suit property; Possession of the suit property not handed over;
     Delivery of possession; Contracting party; Complete relief to the
     decree holder; Relief of possession; Property passed in possession
     of a third person; Subsequent purchasers; Stage of execution of
     the decree; Amend the plaint; “any stage of the proceeding”.

                             Case Arising From
     EXTRAORDINARY APPELLATE JURISDICTION: Special Leave
     Petition (Civil) No. 29397 of 2024
     From the Judgment and Order dated 11.07.2023 of the High Court
     of Judicature for Rajasthan at Jaipur in SBCWP No. 4982 of 2020

                          Appearances for Parties
     Jasbir Singh Malik, Ms. Rhythm Bharadwaj, Narender Kumar
     Sharma, Ms. Suman Sharma, Varun Punia, Advs. for the Petitioners.
     Ashish Kumar Upadhyay, Ms. Chavi Kalla, Ms. Maitri Goal, V. Sibi
     Kargil, Advs. for the Respondents.

                Judgment / Order of the Supreme Court

                                   Order

1.   Application seeking permission to file the Special Leave Petition is
     granted.
2.   Delay condoned.
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3.     This petition arises from the order passed by the High Court of
       Judicature for Rajasthan, Bench at Jaipur in SB Civil Writ Petition
       No.4982/2020, by which the High Court allowed the petition filed by
       the respondents – herein (original plaintiffs and decree holders) and
       set aside the order passed by the Additional District Judge, Bansur,
       District Alwar (Rajasthan) in Execution No.06/2018.
4.     The facts of this case in brief are that the petitioners– herein claim
       to be the subsequent purchasers of the suit property. The plaintiffs
       instituted a suit for specific performance of contract based on an
       agreement of sale with the original defendants. The plaintiffs have
       succeeded in the suit. The Trial Court passed a decree for specific
       performance in favour of the plaintiffs.
5.     It appears that since the original defendant who had executed the
       agreement of sale is no longer interested in the matter as he seems
       to have sold the suit property to the petitioners – herein, there has
       been no further challenge to the judgment and decree passed by
       the Trial Court.
6.     However, in the execution proceedings, the executing court took the
       view that although there is a decree for specific performance yet
       the decree does not say anything as regards putting the plaintiffs in
       possession of the suit property.
7.     In such circumstances, the executing court declined to handover the
       possession of the suit property to the respondents – herein.
8.     The order passed by the executing court came to be challenged by
       the respondents – herein - decree holder.
9.     The High Court vide order dated 11-7-2023 allowed the petition in
       the following terms:-
            “14. Considering the view of the Hon'ble Courts in the
            cases referred to above, it is very safe to say that in the
            case of suit for specific performance even no decree for
            possession has been sought and the suit for specific
            performance is decreed, the Executing Court is under an
            obligation to see that the possession of the suit property
            as decreed is handed over to the decree-holder.
            15. Taking into consideration the facts and the circumstances
            of the case and the view of the Hon'ble Courts in the
[2024] 12 S.C.R.                                                          487

                     Birma Devi & Ors. v. Subhash & Anr.


          cases referred to above, this Court is of the view that the
          decree of specific performance and the resultant execution
          and registration of the sale deed at the instance of the
          Executing court in favour of the plaintiff-decree holder
          entailed an implied right of the plaintiff-decree holder
          to be in possession of the property so conveyed. Since
          such a right has been denied by the impugned order by
          the Executing Court failing to exercise its jurisdiction, this
          Court set asides the impugned order dated 12.03.2019
          passed by the Executing court.
          16. Resultantly, the writ petition is allowed. The order
          dated 12.03.2019 passed by the Executing Court is set
          aside and the Executing court is directed to issue a warrant
          of possession of the suit property in favour of plaintiff -
          decree holder.
          17. In view of the order passed in the main petition, the
          stay application and pending application/s, if any, also
          stand disposed of.”
10. The petitioners – herein who claim to be the subsequent purchasers
    of the suit property seek to challenge the order of the High Court
    in this petition.
11. We have heard Mr. Jasbir Singh, the learned counsel appearing for
    the petitioners and Mr. Ashish Kumar Upadhyay, the learned counsel
    appearing for the respondents.
12. The short question that falls for our consideration is whether the relief
    of possession may be granted by the executing court in a case where
    the suit has been decreed for specific performance simpliciter and
    no express relief for the transfer of possession of the suit property
    has been granted.
13. The position of law on the issue has been settled by this Court in
    the case of Babu Lal v. Hazari Lal Kishori Lal reported in (1982) 1
    SCC 525 wherein the Court while elaborating on Section 22 of the
    Specific Relief Act, 1963 laid down the law for the following two
    situations that may arise:
     a.   First, in cases where the possession of the suit property is
          exclusively with the contracting party, then a decree for specific
488                                                          [2024] 12 S.C.R.

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            performance simpliciter, without specifically providing for delivery
            of possession, may give complete relief to the decree holder.
            This, the Court held, was in consonance with Section 55(1)
            of the Transfer of Property Act, 1882, which binds the seller,
            on being so required, to transfer to the buyer or such other
            person as he directs, such possession of the property as its
            nature admits.
       b.   Secondly, in cases where the relief of possession cannot be
            effectively granted to the decree-holder without specifically
            claiming relief for possession, for instance, in cases where the
            property agreed to be conveyed is jointly held by the defendant
            with other persons, or cases where after the contract the property
            has passed in possession of a third person, then the plaintiff,
            in order to obtain complete and effective relief, must claim the
            relief of transfer of possession over the property defendant
            along with the relief of partition, etc., if required.
14. For the second category of cases, the Court observed that Section 22,
    which was introduced by the legislature to avoid multiplicity of
    proceedings, allows the plaintiff to amend the plaint to include a
    claim for the relief of possession, partition, etc. at any stage of the
    proceeding. The Court further held that the expression “any stage
    of the proceeding” includes the stage of execution of the decree by
    the executing court. The relevant paragraphs from the said decision
    are reproduced hereinbelow:
            “13. The expression in sub-section (1) of Section 22 “in
            an appropriate 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 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 performance 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
[2024] 12 S.C.R.                                                          489

                     Birma Devi & Ors. v. Subhash & Anr.


          not be combined in one suit. Similarly, a case may be
          visualised where after the contract between the plaintiff
          and the defendant the property passed in 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 possession of
          the property. As against him, a decree for possession
          must 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 of
          possession, may give complete relief to the decree-holder.
          In order to satisfy the decree against him completely he
          is bound not only to execute the sale deed but also to put
          the property in possession of the decree-holder. This is
          in consonance with the provisions 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.
          14. There may be circumstances in which a relief for
          possession cannot be effectively granted to the decree-
          holder 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 and effective relief
          must claim partition of the property and possession over
          the share of the defendant. It is in such cases that a relief
          for possession must be specifically pleaded.
                                   xxx xxx xxx
          17. 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 “proceeding” 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
490                                                        [2024] 12 S.C.R.

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         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 ‘proceeding’ in Section 22 includes
         execution proceedings also. In Rameshwar Nath v. U.P.
         Union Bank Ltd. [AIR 1956 All 586 : 1956 All LJ 470 :
         1956 All WR HC 450] 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 marks a stage in litigation. It is a step in the ladder. In
         the journey of litigation there are various stages. One of
         them is execution.
                                  xxx xxx xxx
         20. It is thus clear that the legislature has 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 in the
         plaint and then an opportunity should have been afforded
         to the petitioner to file an objection.”
15. The aforesaid position of law has been recently reiterated by us
    in a recent order passed in the case of Rohit Kochhar v. Vipul
    Infrastructure Developers Ltd. & Ors. reported in 2024 INSC 920
    wherein we have observed thus:
         “23. This Court in Babu Lal (supra), upon a combined
         reading of Sections 22 and 28(3) of the Specific Relief Act
         respectively and Section 55 of the Transfer of Property Act,
         observed that the it was only “in an appropriate case” that
         the plaintiff was required to separately seek the relief of
         possession, partition, or separate possession, as the case
         may be, along with the relief of specific performance. The
         Court observed that in other cases, say for example a case
         where the exclusive possession of the suit property is with
         the contracting party, a decree for specific performance of
         the contract of sale simpliciter, without specifically providing
[2024] 12 S.C.R.                                                          491

                     Birma Devi & Ors. v. Subhash & Anr.


             for delivery of possession, may give complete relief to the
             decree-holder. This, the Court observed, was the mandate
             flowing from Section 55 of the Transfer of Property Act.”
16. The Special Leave Petition is, accordingly, dismissed.
17. Pending applications, if any, also stand disposed of.

     Result of the case: Special Leave Petition dismissed.



     †
         Headnotes prepared by: Divya Pandey