Jagir Singh vs Sham Lal and Others

A.P. Chowdhri, J.—Facts giving rise to this revision petition are that Sham Lal respondent instituted a suit for specific performance of contract of sale dated January 3, 1971. executed in his favour by Mehar Singh. The Petitioner Jagir Singh as mortgagee and his brother Raminder Singh as subsequent vendee were impleaded as defendants alongwith the original promissor Mehar Singh. The suit was dismissed by the trial Court on December, 10, 1973. The lower appellate Court reversed the judgment and decree of the trial Court on May 19, 1975, and passed a decree for specific performance against the promissor Mehar Singh. In R.S.A. No. 1078 of 1975 filed against the judgment and decree of the lower appellate Court, the decree was modified to the extent that the subsequent vendee Raminder Singh was also directed to join in signing the deed of conveyance in favour of the decree-holder by order dated September 23, 1983. According to the contract of sale, Mehar Singh, the original owner, agree 1 to sell two parts of a house described as house No, 195, situate at Manimajra for Rs. 4,803/-. Rs. 300/- had been received by him at the time of the agreement Rs. 1,500/- were to be paid at the time of execution of the sale deed and Rs. 3,000/- were left with the vendee for payment to the mortgagee Jagir Singh. In the suit filed by Sham Lal, no specific prayer was made that the property be redeemed from the mortgagee Jagir Singh on payment of Rs. 3,000/-. On October 4, 1985, the decree holder Sham Lal took out execution of the decree for specific performance. Under orders of the executing Court, the reader of the Senior Subordinate Judge executed sale deed dated November 18, 1985 on behalf of Mehar Singh and Raminder Singh and in favour of the decree-holder. The execution application was dismissed as fully satisfied. A second appli- cation for execution was made on April 11, 1986, in which the decree- holder claimed actual possession of the property covered by the sale deed. The executing Court issued warrant for actual possession. Jagir Singh filed objections on August 4, 1986, to the effect that there was no prayer for actual possession in the suit, that no decree for delivery of possession had been passed against him and that the property continued to be under mortgage with him and had not been redeemed according to law at any stage. The executing Court dismissed the objections by order dated October 19, 1987. Aggrieved by the order, Jagir Singh has preferred this revision.

Mr. S. K. Aggarwal, learned counsel for the petitioner, has raised the following contentions :--

(i) In the suit, no relief whatsoever was claimed against the petitioner. In particular, there was no prayer for delivery of possession against Jagir Singh.

(ii) It was incumbent on the plaintiff to include a prayer for delivery of possession in view of the provisions of Section 22 of the Specific Relief Act.

(iii) The words "at any stage of the proceedings" occurring in the proviso to sub-section (2) of Section 22 of the Specific Relief Act related to the stage of proceedings in the suit and did not include the stage of execution. Reliance was placed on Smt. Swaranlatika Sarkar v. Smt. Prativa Rani Sarkar AIR 1981 Cal. 78 .

(iv) The first application for execution having been dismissed as fully satisfied, second execution application was not maintainable.

(v) The procedure for redemption as laid down in Section 83 of the Transfer of Property Act had not been followed. In appropriate proceedings Jagir Singh mortgagee could have taken all the pleas which were available to him under the law ;

(vi) Jagir Singh filed a suit for a declaration that the decree for specific performance was not binding on him in so far as his rights as mortgagee as well as under prior tenancy were concerned. The suit had been decreed on 18-9-1989. These facts were brought on record by the petitioner in C. M. No. 7973-CII of 1989, under Order 8 and 9 read with Order 41 Rule 27 of the Code of Civil Procedure.

Mr. Arun Jain, learned counsel for the respondents, had controverted all these contentions and has mainly relied on Babu Lal Vs. Hazari Lal Kishori Lal and Others, . He has further contended that Jagir Singh had fought the litigation upto the High Court and the principle of constructive res judicate operated against him with regard to all pleas which he might or ought to have taken in the suit.

I have carefully considered the respective contentions of the learned counsel for both the parties.

It is not disputed that in the suit no prayer for delivery of possession was made either against the promissor Mehar Singh or Jagir Singh who was described as mortgagee of the property. As a result, in the decree passed by this Court in R. S. A. No. 1078 of 1975 dated May 19, 1975, there was no direction for delivery of possession to the the decree-holder even against the promissor Mehaf Singh let alone the mortgagee Jagir Singh. It was for the first time in the second execution application dated April 11, 1986, that the decree- holder deposited Rs. 3,000/- for payment of Jagir Singh mortgagee and made a prayer for actual possession of the property. In Babu Lal''s case (supra) the challenge in the Special Leave before the Supreme Court was to the order of the High Court granting the relief of possession at the stage of execution even though in the main suit for specific performance there was no prayer for possession. Two contentions were raised before the Supreme Court ; one that in granting the relief of possession the High Court acted in flagrant violation of the provisions of Section 22 of the Specific Relief Act, and two, that such relief, if at all, could be granted during the pendency of the proceedings in the main suit or the appeal but not at the stage of execution. In order to appreciate the point involved, it is necessary to read Section 22 of the Specific Relief Act, 1963. It lays down ;

"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 ;

(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 clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed.

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 clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation u/s 21."

It was held that the expression "in an appropriate case" occurring in sub-section (1) 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 Immovable property. It was further observed 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. Here, it may be pointed out that the dispute in Babu Lal''s case (supra) was between the original promissor and the promisee to the contract of sale and the subsequent vendee as distinguished from the dispute in the present case where Jagir Singh is admittedly a mortgagee and is thus a third person. It was in the context of the promissor of the original contract of sale and the subsequent vendee that it was held in Babu Lal''s case (supra) that the relief of possession in addition to that for specific performance was inherent and the said relief could be granted even at the stage of execution proceedings. Mr. S. K. Aggarwal, learned counsel for the petitioner, has distinguished the decision in Bab''u Lal''s case (supra) by pointing out that the case of a third person, like Jagir Singh, is altogether different from the case of a subsequent vendee who was directed to sign the sale deed in favour of the promisee, as in the facts of the present case. There is force in the submission of Mr. Aggarwal. At no stage has the rights of Jagir Singh been adjudicated. The question remains whether Jagir Singh is barred by the principle of constructive res-judicata in regard to pleas which he might and ought to have taken in the suit in which he was admittedly impleaded as a party. There would have been no difficulty in applying the principle of constructive res-judicata against Jagir Singh if there were a prayer for possession against Jagir Singh on payment of the mortgage amount. It is very significant that except mentioning the fact that Jagir Singh was a mortgagee and he was impleaded as such, no prayer whatsoever was made against him. There was no occasion, therefore, for Jagir Singh to raise any of the pleas as no relief whatsoever was claimed against him. In this view of the matter, the law laid down in Babu Lal''s case (supra) does not advance the case of the respondents.

For the foregoing reasons, it is held that the executing Court exercised its jurisdiction with material irregularity in not addressing itself to the various fundamental questions which have been dealt with in regard to the rights of Jagir Singh petitioner. The revision petition is allowed and the order under, revision is hereby set aside. It will be open to Sham Lal to have his remedy against Jagir Singh according to law.