Specific Relief Act Sec.22 & 28 and Sec.55 of T.P.Act - whether the executing court can order for delivery of possession in the absence of the same in Decree of Specific performance under Sec.22 (1)(a) of Specific Relief Act ? - Trial court rejected the objection of the Jdr and order for delivery of possession - their Lordships of Telangana High court held that even in the absence of any specific clause in the decree for recovery of possession, the executing court is undoubtedly and unhesitatingly is competent to order delivery of the property covered by the suit agreement of sale. It is further clear that the decree for mere specific performance implies a decree for possession also. The provisions of Section 28 of Specific Relief Act and Section 55(1)(f) of the TP Act obligate the seller to deliver the property. -2015 Telangana msklawreports




 In the instant case, absolutely there is no controversy with regard to
the realities that the learned I Additional District Judge, Karimnagar decreed
the suit on 29.4.2011, directing the petitioner herein to execute registered
sale deed in respect of the land covered by the suit agreement of sale dated
12.11.2007 and that the said decree has attained finality in view of non
filing of any appeal against the said decree.
 The only objection of the
judgment debtor is that as the decree holder did not seek the relief of
possession as stipulated under Section 22(1)(a) of the Specific Relief Act,
1963 and as there is no decree for recovery of possession, the decree
holder/respondent is not entitled for possession in execution. 
 On the
contrary it is the case of the decree holder that in view of the provisions of
Section 28 of the Specific Relief Act, 1963 and Section 55(1)(f) of the
Transfer of Property Act, 1882 the objection of the petitioner/judgment
debtor cannot stand for judicial scrutiny and liable to be rejected.



Section 22 - Power to grant relief for possession, partition, refund of
earnest money, etc 

       (1) Notwithstanding anything to the contrary contained in the
Code of Civil Procedure,1908, any person suing for the specific
performance of a contract for the transfer of immovable property may,
in an appropriate case, ask for--
       (a) possession, or partition and separate possession, of the
property, in addition to such performance; or
       (b) any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or2[made by] him, in case
his claim for specific performance is refused.
       (2) No relief under clause (a) or clause (b) of sub-section (1)
shall be granted by the court unless it has been specifically claimed:
        Provident 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.
       (3) The power of the court to grant relief under clause (b) of
sub-section (1) shall be without prejudice to its powers to award
compensation under section 21. 

Section 28 - Rescission in certain circumstances of contracts for the sale
or lease of immovable property, the specific performance of which has
been decreed 

       (1) Where in any suit a decree for specific performance of a
contract for the sale or lease of immovable property has been made
and the purchaser or lessee 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 has ordered him to pay, the
vendor or lessor may apply in the same suit in which the decree is
made, to have the contract rescinded and on such application the court
may, by order, rescind the contract 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--
       (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 or lessor; and
       (b) may direct payment to the vendor or lessor of all the rents
and profits which have accrued in respect of the property from the date
on which possession was so obtained by the purchaser or lessee until
restoration of possession to the vendor or lessor, and if the justice of
the case so requires, the refund of any sum paid by the vendee or the
lessee as earnest money or deposit in connection with the contract.
       (3) If the purchase or lessee pays the purchase money or other
sum which he is ordered to pay under the decree within the period
referred to in sub-section (1), the 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:--
       (a) the execution of a proper conveyance or lease by the vendor
or lessor;
       (b) the delivery of possession, or partition and separate
possession, of the property on the execution of such conveyance or
lease.
       (4) No separate suit in respect of any relief which may be
claimed under this section shall lie at the instance of a vendor,
purchaser, lessor or lessee, as the case may be.
       (5) The costs of any proceedings under this section shall be in
the discretion of the court.

9.      Section 55 of the Transfer of Property Act, 1882 reads as infra:
      Rights and liabilities of buyer and seller
In the absence of a contract to the contrary, the buyer and the seller of
immoveable property respectively are subject to the liabilities, and have
the rights, mentioned in the rules next following or such of them as are
applicable to the property sold:
(1) The seller is bound-
(a) to disclose to the buyer any material defect in the property1[or in
the seller's title thereto] of which the seller is, and the buyer is not,
aware, and which the buyer could not with ordinary care discover;

(b) to produce to the buyer on his request for examination all
documents of title relating to the property which are in the seller s
possession or power; 
(c) to answer to the best of his information all relevant questions put to
him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to
execute a proper conveyance of the property when the buyer tenders it
to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the
property, to take as much care of the property and all documents of
title relating thereto which are in his possession as an owner of ordinary
prudence would take of such property and documents; 
(f) to give, on being so required, the buyer, or such person as he
directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the
property up to the date of the sale, the interest on all encumbrances on
such property due on such date, and, except where the property is sold
subject to encumbrances, to discharge all encumbrances on the 
property then existing.

(2) The seller shall be deemed to contract with the buyer that the
interest which the seller professes to transfer to the buyer subsists and
that he has power to transfer the same:
Provided that, where the sale is made by a person in a fiduciary
character, he shall be deemed to contract with the buyer that the seller
has done no act whereby the property is encumbered or whereby he is 
hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to,
and shall go with, the interest of the transferee as such, and may be
enforced by every person in whom that interest is for the whole or any
part thereof from time to time vested.

(3) Where the whole of the purchase-money has been paid to the
seller, he is also bound to deliver to the buyer all documents of title
relating to the property which are in the seller's possession or power:

Provided that, (a) where the seller retains any part of the property
comprised in such documents, he is entitled to retain them all, and, (b)
where the whole of such property is sold to different buyers, the buyer
of the lot of greatest value is entitled to such documents. But in case
(a) the seller, and in case (b) the buyer, of the lot of greatest value, is
bound, upon every reasonable request by the buyer, or by any of the
other buyers, as the case may be, and at the cost of the person making
the request, to produce the said documents and furnish such true
copies thereof or extracts therefrom as he may require; and in the
meantime, the seller, or the buyer of the lot of greatest value, as the
case may be, shall keep the said documents safe, uncancelled and 
undefaced, unless prevented from so doing by fire or other inevitable
accident.

(4) The seller is entitled-
(a) to the rents and profits of the property till the ownership thereof
passes to the buyer;
(b) where the ownership of the property has passed to the buyer before
payment of the whole of the purchase-money, to a charge upon the
property in the hands of the buyer,1[any transferee without
consideration or any transferee with notice of the non-payment], for
the amount of the purchase-money, or any part thereof remaining
unpaid, and for interest on such amount or part1[from the date on
which possession has been delivered].

(5) The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the
seller's interest in the property of which the buyer is aware, but of
which he has reason to believe that the seller is not aware, and which
materially increases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the
purchase-money to the seller or such person as he directs: provided
that, where the property is sold free from encumbrances, the buyer
may retain out of the purchase-money the amount of any 
encumbrances on the property existing at the date of the sale, and shall
pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed to the buyer, to
bear any loss arising from the destruction, injury or decrease in value of
the property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as
between himself and the seller, to pay all public charges and rent which
may become payable in respect of the property, the principal moneys
due on any encumbrances subject to which the property is sold, and
the interest thereon afterwards accruing due.

(6) The buyer is entitled-
(a) where the ownership of the property has passed to him, to the
benefit of any improvement in, or increase in value of, the property,
and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property,
to a charge on the property, as against the seller and all persons
claiming under him,2[ * * *] to the extent of the seller's interest in the
property, for the amount of any purchase-money properly paid by the
buyer in anticipation of the delivery and for interest on such amount;
and, when he properly declines to accept the delivery, also for the
earnest (if any) and for the costs (if any) awarded to him of a suit to
compel specific performance of the contract or to obtain a decree for its
rescission.

An omission to make such disclosures as are mentioned in this section,
paragraph (1), clause (a) and paragraph (5), clause (a), is fraudulent.

 
 From a reading of the principles and parameters laid down in the
above referred judgments cited by the learned counsel for the respondent
wherein the Courts elaborately and thoroughly analysed and considered the
issue in the light of the provisions of Section 28 of the Specific Relief Act,
1963 and Section 55(1)(f) of the Transfer of Property Act, 1882, it can now
be safely concluded that even in the absence of any specific clause in the
decree for recovery of possession, the executing court is undoubtedly and
unhesitatingly is competent to order delivery of the property covered by the
suit agreement of sale.  It is further clear that the decree for mere specific
performance implies a decree for possession also.  The provisions of Section
28 of Specific Relief Act and Section 55(1)(f) of the TP Act obligate the seller
to deliver the property.

 It needs to be remembered that a mature legal system proceeds
always a step forward and endeavours to provide not merely a remedy for
every right infringed but also an adequate remedy.  The endeavour of the
Courts should be in the direction of providing speedy and meaningful justice
to the society and Courts should also strive for effective and expeditious
implementation of the decrees, otherwise there is every possibility of citizens
losing faith and confidence in the system.  In the name of technicalities and
inappropriate procedural shackles the validly rendered decrees should not be
allowed to be frustrated at the instance of the wise and seasoned litigants
and the innocent decree holders should not be allowed to suffer and their
legitimate rights should never be permitted to be invaded.  The contention
of the learned counsel for petitioner that the Executing Court cannot go
beyond the decree also pales into insignificance in view of the law laid down
in the above referred judgments.

  In the teeth of the statutory duties imposed by the provisions of
Section 28 of the Specific Relief Act and Section 55 of the Transfer of
Property Act on the seller and keeping in view the area of operation of
Section 22 of the Specific Relief Act, 1963 and keeping in view the
interpretation given to the phrase "inappropriate cases" as stipulated in
Section 22 of the Specific Relief Act in the above referred judgments and
keeping in view the reality that the property is only in the possession of the
judgment debtor but not in the possession of any third party and having
regard to the ratio laid down in the authoritative pronouncement of the Apex
Court, wherein the Supreme Court elaborately and extensively considered
the impact of the provisions of Section 28 of the Specific Relief Act and
Section 55(1)(f) of the Transfer of Property Act, this Court expresses
absolutely no scintilla of hesitation nor any traces of doubt to hold that the
there is no legal infirmity in the impugned order, warranting interference of
this Court under Section 115 of CPC.  This Court also finds that the order
under revision is well reasoned and well crafted and this Court finds no
reason to meddle with the impugned order.

    For the aforesaid reasons, the CRP is dismissed.2015 Telangana msklawreports

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