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Nathu Ram Petitioner v. Chhotu Singh
Factual and Procedural Background
The respondent (plaintiff in the suit) entered into an agreement to sell the suit property with the petitioner on 27.1.1998. The petitioner did not execute the sale deed within the prescribed time and the respondent sued for specific performance. The trial court (Civil Judge (Junior Division), Abohar) decreed the suit on 9.6.2007, directing the respondent to deposit the remaining sale consideration and get the sale deed registered; in default the respondent could get the sale deed executed through the court. No appeal was filed and the decree became final. Execution petition was filed by the respondent on 24.10.2007.
Execution proceedings included issuance of a warrant of possession. The warrant had been returned with reports that it could not be executed without police help and that the decree-holder should deposit compensation for standing crops (assessed at Rs. 8,100), which he did. The learned executing court then issued further warrants and, on 30.4.2012, directed that police help be provided for execution of the decree and delivery of possession. The judgment-debtor (petitioner) challenged that order before this court.
Legal Issues Presented
- Whether the executing court committed illegality in ordering police help for execution of the warrant of possession when no specific application for police help was made by the decree-holder.
- Whether the executing court could order or give effect to delivery of possession where the decree was for specific performance of an agreement to sell and the decree itself did not specifically grant relief of possession.
Arguments of the Parties
Petitioner (Judgment Debtor) — Submissions
- Contended that while the executing court dismissed the decree-holder's application for restraining the petitioner from harvesting the wheat crop, it nevertheless granted police help for execution though no such prayer was made by the decree-holder before the court below.
- Argued that if the decree-holder was aggrieved by dismissal of that application, he should have impugned that order; he could not obtain police help thereafter without making a specific application.
- Highlighted that objections filed by the petitioner on 30.4.2012 were pending and therefore police help should not have been provided while objections were undetermined.
- Asserted that the sale deed had already been registered in favour of the decree-holder on 2.9.2011 so the decree had been executed and no further execution proceedings should continue (petitioner stated he was not aware of reasons for delay in registration).
- Contended that the decree was simpliciter for specific performance and did not grant relief of possession; therefore the executing court could not go beyond the decree to deliver possession.
Respondent (Decree-Holder) — Position as reflected in the record
- Filed an application under Section 94 read with Section 151 of the Code of Civil Procedure seeking restraint against the petitioner from harvesting the crop, on the ground that he had deposited compensation for the standing crop.
- Deposited the assessed compensation amount (Rs. 8,100) as required by the executing court's report.
- Through his power of attorney holder (Kulwant Singh) and the concerned Kanungo (Harpal Singh), it was stated that the warrant of possession could not be executed due to apprehension of breach of peace at the spot and therefore execution required police help.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Makhan Singh v. Tara Singh, 1980 PLR 479 | That a decree for specific performance includes a relief of possession even when the judgment or decree does not specifically direct delivery of possession. | The court relied on this decision (including paragraph 3) to reject the petitioner's contention that possession could not be granted because the decree did not expressly provide for delivery of possession. |
| Sri Sri Janardhan Kishore Lal Singh Deo v. Girdhari Lal Sunda, AIR 1957 Patna 701 | One of the authorities referenced for the proposition that a decree for specific performance includes relief of possession even if not expressly directed. | Referred to (through Makhan Singh) as supportive precedent for the proposition that executing courts can put a decree-holder in possession even where the decree is silent on possession. |
| Pt. Balmukand v. Veer Chand, AIR 1954 All. 643 | Authority cited for the view that a decree for specific performance includes relief of possession even when not specifically granted. | Referenced (through Makhan Singh) to support the same legal principle relied upon by the court to uphold delivery of possession. |
| Gayasa v. Smt. Risala, AIR 1977 All. 156 | Authority (Single Bench) on facts similar to the present, holding that a decree for specific performance includes relief of possession even if not explicitly directed. | Cited (through Makhan Singh) in support of the proposition that executing courts can grant possession incidental to specific performance decrees. |
| S.S. Rajabathar v. N.A. Sayeed, AIR 1974 Mad. 289 | Held that where the decree is silent on delivery of possession, delivery of possession is incidental to execution of conveyance and the executing court can direct delivery of possession. | Directly cited by the court to support the proposition that the executing court may order delivery of possession even when the decree does not specifically direct it. |
| Smt. Vasantibai (Deceased) by L.R v. Mallappa Narasappa Ramankatti (Deceased) by L.Rs, 2003 (1) RCR (Civil) 519 | Expressed a similar view (as above) regarding the executing court's power to order delivery of possession incidental to specific performance. | Referred to as another authority aligning with the view that delivery of possession may be directed by the executing court even if the decree is silent on possession. |
Court's Reasoning and Analysis
The court reviewed the chronology and the record of execution proceedings. It observed that:
- Warrants of possession had already been issued previously and returned with reports that execution could not be carried out without police assistance. The executing court's order dated 17.2.2012 recorded that the warrant could not be executed without police help and that the decree-holder had been asked to deposit compensation for standing crops (which was deposited).
- Statements were recorded from Kulwant Singh (son and power of attorney holder of the decree-holder) and the local Kanungo (Harpal Singh) indicating apprehension of breach of peace at the spot and that execution could not be effected without police help.
- On the first question (police help without specific application): the court reasoned that when an execution proceeding is pending and the executing court receives a report that the warrant cannot be executed without police assistance because of possible breach of peace, it is within the executing court's power and proper practice to provide police help. The court held that a separate, specific application for police help was not necessary; such orders are part of the execution process to ensure effective enforcement of the decree.
- On the second question (whether possession can be given where decree is for specific performance only): the court considered authority (Makhan Singh and the cases cited therein, S.S. Rajabathar and Smt. Vasantibai) and concluded that a decree for specific performance includes a relief of possession even where the judgment or decree does not explicitly direct delivery of possession. The court noted that the decree in favour of the respondent was for specific performance dated 9.6.2007, execution was filed, the sale deed had ultimately been registered in the respondent's favour on 2.9.2011, but possession had still not been delivered. Given the settled line of authority, the executing court was entitled to direct delivery of possession as incidental to execution of the decree.
- The court also observed that the petitioner had not earlier challenged the issuance of the warrant of possession and had not demonstrated any specific proceedings taken earlier to contest that warrant; therefore objections relied upon at the stage of the present petition were not sufficient to invalidate the executing court's actions.
Holding and Implications
DISMISSED
The petition impugning the order dated 30.4.2012 of the executing court (which directed provision of police help for execution of the warrant of possession) was dismissed.
Direct effects on the parties:
- The executing court's order providing police assistance for execution stands upheld by this court.
- The decree-holder is entitled to possession as part of the execution of the decree for specific performance, consistent with cited authorities; the fact that the sale deed had been registered in the decree-holder's favour supports entitlement to possession.
The opinion does not elaborate broader legal consequences beyond the concrete outcome in these execution proceedings; the decision affirms the executing court's authority to provide ancillary measures (such as police help) and to direct delivery of possession incidental to a decree for specific performance.
Rajesh Bindal J.
The judgment-debtor is before this court impugning the order dated 30.4.2012, passed by the learned court below, whereby a direction was issued for grant of police help in execution of a decree of specific performance of agreement to sell. Police help was provided for delivery of possession.
Brief facts are that the petitioner entered into an agreement to sell pertaining to the suit property with the respondent on 27.1.1998 The sale deed having not been registered within the time prescribed, the suit was filed for specific performance of agreement to sell. The same was decreed by learned Civil Judge (Junior Division), Abohar on 9.6.2007 The judgment and decree of the trial court attained finality as no appeal was filed against the same. The sale deed having not been registered, the respondent-decree holder filed execution on 24.10.2007 In the aforesaid execution, the decree holder filed application on 20.4.2012 seeking restrain against the petitioner-judgment debtor from harvesting the wheat crop standing on the suit land as he had already deposited compensation for the standing crop in the court. While dismissing the application and considering the statement made by power of attorney holder of the decree holder and the concerned Kanungo, the learned court below directed for providing police help for execution of the warrant of possession of the property in dispute. The aforesaid order is impugned before this court.
Learned counsel for the petitioner submitted that while dismissing the application filed by the decree-holder for restraining the petitioner-judgment debtor from harvesting the wheat crop, the learned court below could not have granted police help to the decree holder for execution of warrant of possession as no such prayer was made by the decree holder before the court below. If the respondent-decree holder was aggrieved against the rejection of his application for restraining the petitioner from harvesting the crop, he could have impugned the order before this court. He further submitted that the petitioner had filed objections on 30.4.2012 as have even been noticed in the impugned order. When the objections filed by the petitioner were still pending, police help could not have been provided for execution of warrant of possession.
Learned counsel further submitted that in fact decree has already been executed as the sale deed was registered in favour of the respondent-decree holder on 2.9.2011, however, he was not aware of the reason for delay in execution of the sale deed. He further submitted that objections had been filed to the effect that in the decree passed in favour of the respondent, relief of possession had not been granted as it was simpliciter for specific performance of agreement to sell. The judgment and decree of the court below having already been satisfied with the execution of the sale deed, no further proceedings in the execution could continue.
Heard learned counsel for the petitioner and perused the paper book.
As has already been noticed above, the suit filed by the respondent for specific performance of agreement to sell was decreed by Civil Judge (Junior Division), Abohar on 9.6.2007 The respondent-plaintiff was directed to deposit the remaining sale consideration and get the sale deed registered. In case of failure of the petitioner-defendant to get the sale deed executed, the respondent-plaintiff was at liberty to get the same executed through court. The petitioner having not executed the sale deed, execution was filed by the respondent on 24.10.2007 Though there is nothing on record to show as to why the execution remained pending for a period of about four years as the sale deed is stated to have been registered on 2.9.2011, but still the fact is that with delay, only the petitioner was the beneficiary.
A perusal of the zimni orders produced on record by the petitioner in the petition shows that on 20.1.2012, when the petitioner was directed to be proceeded against ex-parte, the court had noticed that warrant of possession already issued had been received back with a report that the decree holder be directed to deposit the amount of compensation for the standing crops which were assessed at Rs. 8,100/-. The decree holder having deposited the same, warrant of possession was again issued for 17.2.2012
On 17.2.2012, the learned court below passed the following order:
“Warrant of possession received back with the report that warrant of possession cannot be executed without police help. Sh. Shamsher Singh, Advocate has produced his report regarding local commissioner. An application for setting aside ex parte proceedings against JD Nathu Ram has been filed. Copy supplied. Sh. Arun Munjal, Advocate has filed power of attorney on behalf of JD. For filing reply by DH for the said application as well as for evidence of the DH regarding police help, to come up on 23.3.2012”
On 20.4.2012, the respondent filed application under Section 94 read with Section 151 CPC for restraining the petitioner from harvesting the crop. It was apparently for the reason that the respondent-decree holder had already deposited the amount of compensation for the standing crops, but still the learned court below dismissed the same while observing that even if the judgment-debtor harvests the crop, the decree holder can always get the refund of Rs. 8,100/- deposited by him and further can be compensated by way of damages. He has also a right to seek mesne profits from the judgment debtor.
The grouse of the petitioner-judgment debtor is that without there being any application on behalf of the decree holder, the court could not have provided him police help for execution of warrant of possession and further that the objections filed by him pertaining to delivery of possession were pending as the decree passed in favour of the respondent only provided for execution of the sale deed and not delivery of possession.
As far as first question is concerned, I do not find any merit in the submissions made. It has been noticed by the learned executing court in the order dated 17.2.2012 that warrant of possession already issued had been received back with the report that the same cannot be executed without police help and further even in the impugned order, the learned court below has noticed the statement of Kulwant Singh, son and power of attorney holder of respondent-decree holder, and also concerned Kanungo-Harpal Singh to the effect that warrant of possession cannot be executed as there was apprehension of breach of peace at the spot and the same cannot be executed without police help. Once the execution was pending before the court and report had been received that warrant of possession cannot be executed without police help as there was apprehension of breach of peace, in my opinion, no illegality has been committed by the court below in providing police help for execution of warrant of possession. A specific application for the purpose was not required to be filed. It is all in the process of execution that effective orders are required to be passed by the court so as to ensure that decree passed in favour of a party is executed.
As far as second contention raised by learned counsel for the petitioner regarding the objections filed by him on the ground that relief of possession having not been granted by the court, the executing court could not go beyond the decree is concerned, even that contention is totally misconceived. As has already been noticed earlier, it is not for the first time that warrant of possession had been issued. The learned executing court had noticed in the order dated 20.1.2012 that warrant of possession already issued had been received back with the report that the decree holder is required to deposit compensation for the standing crops. There is nothing on record to show that the petitioner ever felt aggrieved against the issuance of warrant of possession and challenged the same. Learned counsel for the petitioner was not aware of any proceeding prior thereto. The fact remains that decree of specific performance of agreement to sell was passed in favour of the respondent on 9.6.2007 Even though the execution was filed on 24.10.2007, but still the sale deed was executed on 2.9.2011 The possession is yet to be delivered.
As far as jurisdiction of the executing court to grant relief of possession where decree is only for specific performance of agreement to sell is concerned, the same was considered by this court in Makhan Singh v. Tara Singh, 1980 PLR 479. It has been opined therein that a decree for specific performance includes a relief of possession even when neither in the judgment nor in the decree a specific direction to put the decree holder in possession is given. Relevant paragraph 3 thereof is extracted below:
“3. The learned counsel for the petitioner, Mr. H.L Sarin, referred to me one Division Bench decision of the Patna High Court reported in Sri Sri Janardhan Kishore Lal Singh Deo v. Girdhari Lal Sunda, AIR 1957 Patna 701, one Division Bench decision of the Allahabad High Court reported in Pt. Balmukand v. Veer Chand, AIR 1954 All. 643 and the other of Single Bench in Gayasa v. Smt. Risala, AIR 1977 All. 156, wherein on facts, which are on all fours with the facts of the present case, the view taken was that a decree for specific performance includes a relief of possession even when neither in the judgment nor in the decree a specific direction to put the decree holder in possession is given. I am in respectful agreement with the view enunciated in the said decisions.”
In S.S Rajabathar v. N.A Sayeed, AIR 1974 Mad. 289, the decree was silent as far as direction to deliver possession of the property is concerned. Then the question arose was whether Executing Court can direct delivery of possession in such situation. It was held that delivery of possession being incidental to the execution of the conveyance in favour of the decree holder, such direction for delivery of possession can be given by the Executing Court.
Similar view was expressed by Karnataka High Court in Smt. Vasantibai (Deceased) by L.R v. Mallappa Narasappa Ramankatti (Deceased) by L.Rs, 2003 (1) RCR (Civil) 519.
Considering the enunciation of law, as referred to above, the objection, if any, filed by the petitioner to resist the warrant of possession on the ground that this relief had not been granted to the decree holder in the decree passed in his favour, is totally misconceived. Once in execution of the judgment and decree in favour of the respondent, the sale deed had already been registered, there is no reason that the decree holder is not entitled to the possession of the property already registered in his name.
In view of my aforesaid discussion, I do not find any merit in the present petition. Accordingly, the same is dismissed.
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