Most. Ram Sundart Devi and Others vs Satban Singh and Others

B.P. Jha, J.—This civil revision petition has been filed against an order dated 24th June, 1977.

By the impugned order, the court below refused to grant delivery of possession on the ground that the decree did not mention about the delivery of possession of the suit land.

In this connection, learned Counsel for the petitioners has relied on a Division Bench decision of this Court in Atal Behary Acharya Vs. Barada Prasad Banerji, . In that case, the Division Bench has held that if there is no prayer for delivery of possession either in the plaint or in the decree, the executing court is not debarred from granting delivery of possession of the suit property to the plaintiff. In the present case, there is a prayer in the plaint for delivery of possession of the suit property.

It was a suit for specific performance of contract. Defendant No. 1 was directed to execute a sale deed in respect of the subject-matter of the suit property. Defendant no 1 did not execute the sale deed, and, as such, the trial court executed the sale deed in favour of the plaintiffs-petitioners. In the execution petition, it was prayed that delivery of possession be given to the plaintiffs-petitioners. It was refused by the executing court on the ground that the decree did not mention about the delivery of possession of the suit property.

Learned Counsel for the opposite party, on the other hand, relies on a decision of the Supreme Court in Managing Director (M.I.G), Hindustan Aeronautics Ltd. and Anr., Balanagar v. Ajit Prasad Tarway 1972 (I) L.L.J. 1707 SC. In that case, the first appellate court directed the defendant to refrain from proceeding with the enquiry till the decision. The order of suspension was not stayed. In revision, the High Court stayed the operation of suspension order and the proceedings in the enquiry. In this circumstance, the Supreme Court held that the High Court had no jurisdiction to interfere with the order in question. In ray opinion, this case is not relevant for the decision of this case.

Hence, relying on the Division Bench decision of this Court (supra), 1 hold that the court has enough power to give delivery of possession to the plaintiffs-petitioners, although the decree does not mention about the delivery of possession. Hence, 1 direct the executing court to give delivery of possession of the suit property as prayed by the plaintiffs-petitioners in the execution petition in accordance with law. In my opinion, the court below committed a jurisdictional error and exercised the jurisdiction which was not vested in it by law. In my opinion, the court below acted illegally. The order of the execution court will also occasion a failure of justice. Hence, I interfere with the order in question.

In the result, the petition is allowed and the order dated 24tb June, 1977, is set aside. The parties shall bear their own costs.