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PETITIONER: BABU LAL

       Vs.

RESPONDENT: HAZARI LAL KlSHORI LAL & ORS.

DATE OF JUDGMENT29/01/1982

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) SEN, A.P. (J)

CITATION:  1982 AIR  818            1982 SCR  (3)  94  1982 SCC  (1) 525        1982 SCALE  (1)79

ACT:      Specific Relief  Act, sections  22  and  28  read  with section 55 of the Transfer of Property Act, scope of-Section 22 of  the Specific  Relief Act enacts a rule of pleading in order to  avoid multiplicity  of proceedings-When  the court has decreed the suit for specific relief of execution of the agreement  to  sale  of  an  immovable  property  without  a separate prayer  for possession in the plaint, the decree is still executable  without recourse  to another separate suit for possession-Powers  of the High Court to grant the relief in execution application.

HEADNOTE:      Pursuant to  an agreement for sale of certain plots for Rs. 15,  500 M/s.  Hazari Lal  Kishori Lal  respondent No. 1 alongwith respondents 2 to 5 bad 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 Babu Lal, the petitioner, in respect of the same property for Rs. 20,000  on   7th  August,  1967.  Under  the  circumstances, respondents 1  to 5  filed a  suit (No.  10 of  1968) in the court of  Civil Judge,  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 1 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 his  own peril  and would  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 and  directed the petitioner and respondents 6 to 9 to execute the sale deed in favour of respondents Nos. 1 to 5.      The petitioner,,  however, did  not handover possession and remove  the  construction  raised  by  him  despite  his undertaking dated  25th  March,  1968.  The  decree-holders,

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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 objections were three-fold: (i) The decree  was inexecutable  as the  decree-holders did not claim a  relief  for  possession  in  the  suit  itself  and consequently there was no decree for 95 possession  with   the  result   that  the  application  for execution  by  delivery  of  possession  was  liable  to  be dismissed in  view of  section 22 (2) of the Specific Relief Act; (ii)  the Urban Land Ceiling Act having come into force it  was  incumbent  on  the  decree-holders  to  obtain  the permission as  required under  sections 26  and  27  of  the Ceiling Act  and in  the absence  of any such permission the application for  execution 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 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 of the judgment  debtor in  part inasmuch  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 observation  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  they 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 entitled to  possession also.  Hence the petition by special leave by judgment debtor-petitioner.      Dismissing the petition, the Court. ^      HELD:  1.  A  decree  for  specific  performance  of  a contract 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 Transfer of Property Act. [103 F-G]      Kartik Chandra  Pal v.  Dibakar  Bhattacharjee,  A.I.R. 1952 Cal.  362; Hakim  Enayat Ullah  v. Khalil  Ullah Khan & Anr., A.I.R.  1938 All.  432; Ranjit Singh v. Kalidasi Devi, 37 Cal. 57; Madanmohan Singh v. Gaja Prasad Singh, 14 C.L.J. 159; Deonandan  Prasad v. Janki Singh, 5 Pat. L.J. 314; Atal Behary v.  Barada Prasad, A.l.R. 1931 Pat. 179; Balmukand v. Veer Chand,  A.I.R. [1954]  All. 643;  Janardan  Kishore  v. Girdhari Lal, A.l.R. 1957 Pat. 70l; Subodh Kumar v. Hiramoni Dasi, A.I.R. 1955 Cal. 267; Mohammed Ali Abdul Chanimomin v. Bishemi Kom  Abdulla Saheb  Momin & Anr., A.I.R. 1973 Mysore 131, discussed.      2:1. Section  22 enacts a rule of pleading. The purpose of section  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 procedural complications, even though strictly speaking, the right to  possession accrues  only when  suit  for  specific performance is decreed, and empowers the court to provide in the decree  itself that 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.

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[104 E-F]      2:2. Though sub-section (2) of section 22 recognised in clear terms  the well-established rule of procedure that the court should not entertain a claim of 96 the plaintiff unless it has been specifically pleaded by the plaintiff and  proved by  him to  be legally 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  his plaint,  in the  initial stages  of  the suit, the  court shall  permit the plaintiff at any stage of the proceedings, 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]      Mahender Nath  Gupta v.  M/s. Moti  Ram Rattan  Chand & Anr., A.I.R.  1975 Delhi 155; M/s. Ex-Servicemen Enterprises (P) Ltd.  v. Sumey  Singh, A.I.R.  1976 Delhi  56; Rameshwar Nath v. U.P. Union Bank, A.I.R. 1956 All. 586, approved.      2:3. The  expression  "in  an  appropriate  case’  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  immoveable property.  That has  to be done where the circumstances demanding  the relief for specific performance of the  contract of  sale embraced within its ambit not only the execution  of the sale deed but also possession over the property 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 being inherent in the  relief 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  including a claim for such relief "at any stage of the proceedings". [106 G-H, 107 A-B]      2:4. The  term "proceedings"  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 conducted. The  word "proceeding"  in  section  22  includes execution proceedings  also. 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.  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 rightly  granted the  relief of  possession. [107 C-E, 109 B-C]      Rameswar Nath  v. Uttar Pradesh Union Bank, A.I.R. 1956 All. 586;  Mahender Nath Gupta v. M/s. Moti Ram Rattan Chand JUDGMENT: A.I.R. 1954  All. 643;  M/s. Ex-servicemen  Enterprises  (P) Ltd. v. Sumey Singh, A.I.R. 1976 Delhi 56, approved.      3:1. If  once  the  legal  position  is  accepted  that neither a  contract for  sale 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 judgment-debtor himself or 97

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by the  court itself  in case  he fails  to execute the sale deed, no  valuable right  can be said to have accrued to the petitioner judgment-debtor  by lapse of time, merely because a decree has been passed for the specific performance of the contract. The  limitation would  start against  the  decree- holders only  after they  had obtained  a sale 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]      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 requiring  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 Transfer of Property  Act authorises the transferee to get possession in pursuance  of a  sale deed.  It was  open to the Court to allow an  amendment, on  the basis  of section 22 indeed, it has allowed  delivery of  possession  in  pursuance  of  the decree passed in the case. [109 F-G, H, 110 A-B, E]      3:3. Further,  sub-section (3)  of section  28  clearly contemplates that  if  the  purchaser  or  lessee  pays  the purchase money or other sum which he 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  the  delivery  of  possession  or partition and  separate possession  of the  property on  the execution of  such conveyance  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 appellate court and passed a decree for possession not only  against the  transferors but  also  against  their transferee, 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 Investment  Trust Ltd. v. Haridas Mundhra, & Ors., A.I.R. 1972 S.C. 1826, reiterated.

&      CIVIL APPELLATE  JURISDICTION :  Petition  for  Special Leave to Appeal (Civil) No. 7771 of 1981.      From the  Judgment and  order dated  the 2nd September, 1981 of  the Allahabad High Court in Execution second Appeal Nos. 1001  & 1720  of 1977  and Civil  Revision No.  1447 of 1978. 98      R.R. Jain for the Petitioner.      Mrs. S. Bhandare for the Respondent.      The Judgment of the Court was delivered by      MISRA J. This is a petition for special leave to appeal against the  judgment and order dated 2nd of September, 1981 passed  by   the  High  Court  of  Judicature  at  Allahabad disposing of  Execution Second  Appeal No.  1001 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

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hearing the  counsel for  the parties  we dismissed the same for reasons to be recorded later. We Dow proceed to give the reasons.      The present  petition  is  a  typical  example  of  the desperate effort  of the  judgment debtor  to ward  off  the execution of the decree till the bailiff knocks at the door. Respondents Nos.  6 to  9 entered  into  an  agreement  with respondents Nos.  1 to  5 on  30th of July, 1967 for sale of certain plots  situate behind  their shop  for  Rs.  15,500. Respondents Nos.  1 to  5 had  paid a  sum of  Rs. 1,500  as earnest money  pursuant to  the agreement. The sale deed was agreed to  be executed within fifteen days of the agreement. Respondents 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 respondents Nos. 1 to 5 were obliged to file a suit which  was later  on numbered as suit No. 10 of 1968 in the Court  of Civil  Judge, 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  of July,  1967. It appears that during  the pendency of the suit the petitioner started construction on  the disputed plot after demolishing the old construction.   The    plaintiffs,   therefore,   filed   an application for  an injunction  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 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 99 appeal the  Addl. District Judge decreed the suit. In Second Appeal the  High Court  confirmed the judgment and decree of the  first   appellate  court  with  a  slight  modification inasmuch as  the High  Court  directed  the  petitioner  and respondent Nos. 6 to 9 to execute the sale deed in favour of the respondents  Nos. 1  to 5,  to bring it in line with the decision of the Supreme Court in Lala Durga Prasad & Anr. v. Lala Deep Chand & Ors. wherein it was held:           "In a  suit instituted  by a purchaser against the      vendor  and   a  subsequent   purchaser  for   specific      performance of  the contract  of sale, if the plaintiff      succeeds, the proper form of the decree to be passed is      to direct  specific 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  remove   construction  raised   by  him   despite   his undertaking dated  25th of  March, 1968. The decree holders, therefore,  applied   for  execution  of  thee  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 objections were three-fold: (1) The decree  was inexecutable  as the  decree-holders did not claim a  relief  for  possession  in  the  suit  itself  and consequently  there   was  no  decree  for  possession.  The application for  execution 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 force it was incumbent on the

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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 impleaded as parties originally and they were impleaded as parties only after the court had  directed the  vendors to execute the sale deed in Second Appeal.  As the  vendors  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 100 of the  judgment-debtor in  part inasmuch 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 observation  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  execution court  was confirmed in  appeal by  the  First  Addl.  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   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 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-holders 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 September, 1981.      Only one  contention has  been raised  on behalf of the petitioner by  Mr. Shanti  Bhushan, senior counsel, that the High Court  could 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 violation of the provisions of section 22 of  the Specific  Relief Act  in granting  the relief  of possession. In  substance, the  main plank of the contention of the  petitioner is  based on  section 22  of the Specific Relief Act. As it stands after amendment of 1963, it reads:           "22(1)    Notwithstanding anything to the contrary      contained in  the Code  of Civil  Procedure, 1908 (5 of      1908), any person suing for the specific performance of      a contract  for the transfer of immovable property may,      in an appropriate case, ask for- 101      (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 or made by him, in case his claim for           specific performance is refused.      (2)  No relief  under Cl. (a) or Cl. (b) of sub-section           (1) shall  be granted  by the  Court unless it has           been specifically claimed:

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         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.      (3) The  power of  the Court  to grant relief under Cl. (b) of  sub-section (1)  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 tho 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 without an amendment of the plant.      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 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 a  Division Bench  of the  Allahabad High  Court dealing with the question observed; 102           "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 the decree-holder has to      proceed in  execution in accordance with the provisions      of 0.21  of the  Code. So  long as the sale deed is not      executed in  favour of  the decree holder 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 the      execution of  the sale deed that transfers title to the      property."      In  Kartik  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  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      performance of contract for the sale of land it is open      to the  plaintiff to join in the sale suit two prayers,      one for  the 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 11, Specific 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 the      Court is required and the Court will do all such things

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    as the  parties would  have been  bound to  do had this      been 103      done without the intervention of the Court. A sale of 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   the      consideration money. The Court 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  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 for specific performance  has been  considered to be somewhat 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  specific performance  of the  contract. The executing court  is in  such a case vested with authority to issue necessary directions."      In Balmukand  v. Veer  Chand the  decree  for  specific performance 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 that the  executing court was still competent to deliver the possession. It was further held that it was not necessary in a suit  for specific  performance either to separately claim possession nor  was it  necessary for  the court  to pass  a decree for  possession. A decree for specific performance of a contract  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 SS  of the Transfer of property Act. In Janardan Kishore  v. Girdhari  Lal the Patna High Court took the view  that the  relief of  procession is  inherent in  a relief for specific performance of contract for lease, 104 and the court executing a decree for specific performance of such a  contract can grant possession of the property to the decree-holder 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  of  the execution and  completion of the conveyance, and as such the judgment-debtor was  bound  to  deliver  possession  to  the decree-holder.      In Mohammed Ali Abdul Chanimomin v. Bishemi Kom Abdulla Saheb Momin  Anr the  Mysore High  Court observed  that  the 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 of section 55 of the Transfer of  property 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 is postponed.      In this  state of the law Legislature intervened and on

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the basis  of the  report  of  the  Law  Commission  enacted section 22 in 1963 as it stands.      Section 22  enacts a  rule of pleading. The Legislature 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 suit for specific performance is decreed. The Legislature  has 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  that 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      The section enacts that a person in a suit for specific performance of  a contract  for the  transfer  of  immovable property, may  ask for  appropriate reliefs,  namely, he may ask for  possession,  or  for  partition,  or  for  separate possession including the relief 105 for specific  performance. These  reliefs he can claim, not- withstanding  anything   contained  in  the  Code  of  Civil Procedure, 1908,  to the  contrary, 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 plaintiff 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 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  proceedings, 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 (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  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  in  possession  of  a  third person. A  mere  relief  for  specific  performance  of  the contract of  sale  may  not  entitle  the  plaintiff  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

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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 106 only to  execute the  sale-deed but also to put the property in possession  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.      There may  be  circumstances  in  which  are  lief  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 t share  of the defendant. It is in such cases that a relief for possession must be specifically pleaded.       In  the instant  case, it  is pointed out on behalf of the  petitioner   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-respondents Nos. 1 to 5.      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  short,  the  decree  was passed by the High Court not only against respondents Nos. 6 to 9  but also  against the  subsequent purchaser  i.e., the petitioner and  thus the petitioner was himself the judgment debtor and  it cannot  be said that he was a third person in possession and,  therefore, relief  for 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  contract  in  all  cases’.  This argument ignores  the  significance  of  the  words  ’in  an appropriate 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 property. That  has  to  be  done  where  the  circumstances demanding  the   relief  for  specific  performance  of  the contract of  sale embraced  within its  ambit not  only  the execution of  the sale  deed but  also possession  over  the property 107 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 being  inherent in  the relief 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  including a claim for such relief ’at any stage of the proceedings’.      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

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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 conducted. The  word ’proceeding’  in  section  22  includes execution proceedings  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 is execution.      In Mahender  Nath Gupta  v. M/s.  Moti Ram Rattan Chand and Anr  the Delhi  High Court  endorsed the  view taken  in Balmukand v.  Veer Chand  (supra) that  where in  a suit for specific performance  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  1,  1964  Specific Relief Act  of 1963 came into force and this Act altered the law by  enacting section  22. It  made it  necessary for the plaintiff 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 1963 had no appli- 108 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 Enterprises (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  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  in his  favour ?  The Delhi High Court observed:           "Section  22   enacts  a  rule  of  pleading.  The      legislature 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 has      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 that 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.           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 where  the plaintiff  has not  claimed  such      relief in his original plaint.           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  with a  definite meaning attached

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    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. 109           The word  "proceeding" in Section 22 in my opinion      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 agreement  with the  view taken  by the  Delhi High Court on this case.      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.      If once  we accept  the legal  position that  neither a contract for  sale 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 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  has been  passed for  the specific performance of  the contract.  The  limitation  would  start against the  decree-holders only  after they  had obtained a sale in  respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment debtor  by lapse  of  time.  Section  22  has  been enacted only  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.      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 petitioner is hyper-technical. The execution court has every jurisdiction to  allow the amendment. The only difficulty is that instead  of granting  a relief  of possession  the High Court should  have allowed  an amendment  in the Plaint. The mere 110 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 petitioner had  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 have given an impression to the plaintiff decree holders that in the event of success of the suit the construction would be demolished and they would get

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back possession. Now the judgment-debtor petitioner seeks to lake advantage  of the expression used in the undertaking to contend  that   he  had  undertaken  only  to  demolish  the construction and  restore the land to its original position. The contention  now 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  the  decree  holders unless there  was an  amendment in  the plaint.  We are  not prepared to  take such  a narrow  view of section 22. It was open to the Court 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.      Before closing  discussion on this point we cannot lose sight of  section 28 of the Specific Relief Act, 1963, which reads:           "28. (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      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 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 111      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 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 the  possession 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,  the                refund of  any sum  paid  by  the  vendee  or                lessee  as   earnest  money   or  deposit  in                connection with the contract.           (3)  If the  purchaser 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 112      of a  vendor, purchaser,  lessor or lessee, as the case      may be "

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    Sub-section (3) of section 28 clearly contemplates that if the  purchaser or lessee pays the purchase money or other sum which  he 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 the  delivery of  possession or  partition  and separate possession of the property on the execution of such conveyance 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.      In Hungerford  Investment Trust Ltd. v. Haridas Mundhra and ors.  dealing with section 28 (1) of the Specific Relief Act, 1963 this Court observed:           "The  Specific   Relief  Act,   1963,  is  not  an      exhaustive enactment  and under  the  law  relating  to      specific relief  a Court  which  passes  a  decree  for      specific performance  retains control  over the  decree      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 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 applicability of  sub-section (1) of section 28 will equally apply to  the applicapability  of sub-section (3) of section 28.      This is  an additional reason why this Court should not interfere with  the eminently  just order of the High Court. The High  Court had  amended the  decree passed by the first appellate court  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 113 possession in  pursuance of  the decree obtained by him. The judgment-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 appeal must fail and it was accordingly dismissed. S.R.      Petition dismissed. 114