Rajasthan High Court – Jodhpur
Karnail Singh vs Shyam Sundar (2026:Rj-Jd:19553) on 24 April, 2026
[2026:RJ-JD:19553]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 23499/2025
Karnail Singh S/o Shri Sundar Singh, Aged About 95 Years, R/o 3
Fc Jagtewala, Tehsil Sri Karanpur, District Sri Ganganagar (Raj.).
----Petitioner
Versus
Shyam Sundar S/o Shri Jugal Kishor Maheshwari, R/o Ward No.
9, Sri Karanpur, Tehsil Sri Karanpur, District Sri Ganganagar
(Raj.).
----Respondent
For Petitioner(s) : Mr. Rohitash Singh Rathore
For Respondent(s) : Mr. Nitin Trivedi
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
(i) Arguments concluded on : 13.03.2026
(ii) Order reserved on : 13.03.2026
(iii) Full order/Operative part : Full judgment
(iv) Order pronounced on : .04.2026
1. The present writ petition under Article 227 of the
Constitution of India has been filed by the petitioner-judgment
debtor challenging the order dated 19.11.2025 (Annx.5) passed
by the Additional District Judge, Sri Karanpur, District Sri
Ganganagar in Execution Case No. 02/2010 (Shyam Sunder vs.
Karnail Singh), whereby objection application filed by the
petitioner under Section 47 of the Code of Civil Procedure, 1908,
has been rejected and the application of the respondent-decree
holder under Section 151 of C.P.C. has been allowed.
2. Briefly stated, the facts of the case, as pleaded in the writ
petition, are that the respondent instituted a suit for specific
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performance of an agreement to sell 10 bigha of land of his share
situated in Chak No. 3 FC, Murabba No. 19, Kila Nos. 6 to 15. The
relief sought in the suit was confined to execution of the sale deed
and did not include possession. The petitioner contested the suit,
contending that the land in question was joint and unpartitioned,
and therefore, could not be specifically sold. The trial court,
however, decreed the suit in favour of the respondent vide
judgment dated 23.08.2002. Thereafter, execution proceedings
were initiated. In the said execution proceedings, the respondent-
decree holder filed an application under Section 151 of C.P.C.
seeking delivery of possession on the ground that such relief is
implicit in a decree for specific performance. The petitioner-
judgment debtor opposed the same by filing objections under
Section 47 of C.P.C., asserting that the decree did not grant
possession and that the Executing Court cannot travel beyond the
scope of the decree. It was further contended that the land being
joint agricultural land, possession could not be delivered without
partition and without impleading the co-sharers, and that the
matter falls within the jurisdiction of the revenue court and not the
civil court. Despite these objections, the Executing Court allowed
the application of the respondent-decree holder on 19.11.2025
and rejected the petitioner’s objections.
3. It has further been submitted that, in the meanwhile, the
sons of the petitioner have instituted a revenue suit in respect of
the same land before the S.D.O. (Revenue), Sri Karanpur, wherein
an interim temporary injunction dated 31.07.2024 is in operation.
It has been contended that in view of the subsisting stay order,
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possession cannot be delivered. Additionally, the land in question
is mortgaged with Punjab National Bank, which has not been
impleaded as a party, thereby rendering the execution
proceedings legally untenable.
4. Heard learned counsel for the parties.
5. Learned counsel for the petitioner has submitted that the
Executing Court erred in granting possession by invoking Section
151 of C.P.C., despite the decree did not provide for such relief. It
has been contended that it is a settled principle of law that the
Executing Court cannot travel beyond the terms of the decree.
6. It has been submitted that the original suit was confined to
the relief of specific performance, namely, execution of the sale
deed, and neither any prayer, issue nor decree for possession was
made. Therefore, possession cannot be granted at the stage of
execution.
7. It has been further submitted that the land in question is
joint agricultural land having multiple co-sharers, and in absence
of partition and impleadment of all co-owners, possession of a
specific portion cannot be delivered. It is argued that the matter
falls within the jurisdiction of the revenue court and not the civil
court.
8. It has been contended that although, a share in joint
property may be transferred, possession thereof cannot be handed
over without prior partition, as consistently held in judicial
precedents. Further, it has been contended that the property is
ancestral in nature, and the rights of other legal heirs cannot be
adversely affected in execution proceedings.
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9. Inviting attention to Section 22 of the Specific Relief Act, it
has been argued that relief of possession cannot be granted
unless it has been specifically claimed in the suit. It has been
submitted that a revenue suit concerning the same land is pending
and an interim injunction is in operation, thereby restraining
delivery of possession. Further, the land is mortgaged with Punjab
National Bank, which has not been impleaded as a party,
rendering the execution proceedings defective.
10. Lastly, it has been contended that the Executing Court has
recorded erroneous findings regarding prior objections and failed
to consider that related proceedings are pending before this Court,
and thus it has been urged that impugned order, having expanded
the scope of the decree, deserves to be set aside.
11. In support of his contentions, learned counsel for the
petitioner has relied upon the following decisions :-
i. Kartar Singh vs. Harjinder Singh and Others reported in (1990) AIR (SC) 854; ii. Ramdas vs. Sitabai and Others reported in (2009) AIR (SCW) 4365; iii. Dhara Singh vs. Fateh Singh and Others reported in (2009) AIR (Raj) 132; iv. Adcon Electronics Pvt. Ltd. vs. Daulat and Anr. (Appeal Civil No. 1566/1991) decided on 12.09.2001; and v. Babu Lal vs. Hazari Lal Kishori Lal and Others reported in (1982) AIR (SC) 818. 12. In contrast, learned counsel for the respondent while
supporting the order impugned, has submitted that the Executing
Court has rightly allowed the application under Section 151 of
C.P.C., as the relief of possession is incidental and ancillary to a
decree for specific performance. It is contended that once the sale
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deed has been executed and registered in favour of the decree-
holder, he becomes entitled to possession of the property, even if
the same was not expressly prayed for in the suit.
13. It has been further submitted that the objections raised by
the petitioner were already considered and decided in the original
suit as well as in earlier proceedings in execution, and therefore
cannot be permitted to be re-agitated.
14. It has been argued that the provisions of Section 22 of the
Specific Relief Act are directory in nature, and the Court is
empowered to grant possession at any stage of the proceedings,
including execution.
15. Learned counsel for the respondent has invited attention of
this Court to Section 44 of the Transfer of Property Act, 1882 and
submitted that a transferee of an undivided share in joint property
merely steps into the shoes of the transferor and acquires
corresponding rights, including joint possession and the right to
seek partition. It further provides that in case of a dwelling house
belonging to an undivided family, a transferee who is not a
member of such family, is not entitled to joint possession or
common enjoyment thereof, in view of the statutory limitation
contained in the said provision.
16. It has been submitted that the suit for specific performance,
which culminated in the decree, pertained to land comprised in
Kila Nos. 6 to 15 of Murabba No. 19, whereas, the subsequent
revenue suit relates to Kila Nos. 16 to 20 of the same Murabba,
and thus, concerns distinct parcels of land. It has also been
contended that mere existence of a mortgage over the property
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does not, in law, operate as a bar to the delivery of possession in
execution of a valid decree.
17. In support of his contentions, learned counsel for the
respondent has relied upon the following decisions :-
i. Manickam @ Thandapani & Anr. vs.
Vasantha (Civil Appeal No. 2726 of 2022)
ii. LR's of Ramji Lal vs. Narendra Kumar
(S.B. Civil Writ Petition No. 11815/2019)
decided on 14.12.2023
18. I have considered the submissions made by learned counsel
for the parties, perused the material available on record and gone
through the judgments cited at Bar.
19. The core issue which arises for consideration is whether, in
execution of a decree for specific performance, the Executing
Court can direct delivery of possession even when such relief has
not been expressly granted in the decree.
20. A reading of the judgment and decree dated 23.08.2002
shows that the trial court specifically directed the respondent-
plaintiff to pay the remaining sum of ₹1,00,000/- to the defendant
in accordance with the terms of the agreement dated 17.03.1998.
Upon such payment, the defendant was required to execute and
register the sale deed for the land in favour of the plaintiff; failing
which, the plaintiff would be entitled to have the sale deed
executed and registered through the court.
21. The contention advanced by the petitioner that the executing
Court has travelled beyond the decree is rejected as being without
merit. A decree for specific performance of a contract for sale of
immovable property inherently contemplates completion of the
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transaction in its entirety, which includes not only execution and
registration of the sale deed but also putting the purchaser in
possession, unless the terms of the contract or decree indicate
otherwise.
22. In the present case, it is not in dispute that the decree dated
23.08.2002 has attained finality and the sale deed of subject land
has already been executed in favour of the decree-holder. Once
the title has been conveyed, denial of possession would render the
decree itself ineffective and frustrate the very purpose of granting
specific performance.
23. The objection raised under Section 47 C.P.C. is, therefore,
rightly rejected by the Executing Court, as it does not pertain to
execution, discharge or satisfaction of the decree in the true
sense, but is an attempt to obstruct its enforcement on grounds
which either stood concluded in the suit or are otherwise
untenable at the stage of execution.
24. In the case of Manickam @ Thandapani (supra), the
Hon’ble Supreme Court has observed as under :-
“29. To examine whether a provision is directory or mandatory,
one of the tests is that the court is required to ascertain the real
intention of the legislature by carefully attending to the whole
scheme of the statute. Keeping in view the scheme of the statute,
we find that Section 22(2) of the Act is only directory and thus,
the decree-holder cannot be non-suited for the reason that such
relief was not granted in the decree for specific relief.
30. The defendant in terms of the agreement is bound to handover
possession of the land agreed to be sold. The expression “at any
stage of proceeding” is wide enough to allow the plaintiffs to seek
relief of possession even at the appellate stage or in execution
even if such prayer was required to be claimed. This Court in
Babu Lal has explained the circumstances where relief of
possession may be necessary such as in a suit for partition or in a
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[2026:RJ-JD:19553] (8 of 11) [CW-23499/2025]property. In the suit for specific performance, the possession is
inherent in such suit, therefore, we find that the decree-holders are
in fact entitled to possession in pursuance of the sale deed
executed in their favor.”
A coordinate Bench of this Court in LR’s of Ramji Lal’s
case (supra), has observed as under :-
“18. A bare perusal of the judgment and decree dated 07.03.1998
reflects that the Court below, had specifically directed the
petitioner defendant to execute the sale deed for the land in
dispute and also getting the same registered in favour of the
plaintiff while directing the plaintiff-respondent to pay the cost of
registration and thus, once, the sale deed is executed and
registered, the possession of the land in dispute in favour of the
plaintiff-respondent is ancillary and in the absence of any
direction given by the Court below while passing the decree in
respect to the possession to be handed over to the respondent-
plaintiff, it cannot be said that the plaintiff-respondent cannot
make a prayer while filing the application for execution of the
decree and judgment that the possession of the land in question
may be delivered to the plaintiff-respondent. The relief of
possession is ancillary to the decree for Specific Performance and
need not be specifically claimed.
19. This Court finds that Hon’ble the Apex Court in the case of
Hemant Gupta Vs. Ramasubramanian, JJ reported in (2022) 5
SCC 1996, has held that:-
“29. To examine whether a provision is directory or
mandatory, one of the tests is that the court is required to
ascertain the real intention of the legislature by carefully
attending to the whole scheme of the statute. Keeping in
view the scheme of the statute, we find that Section 22(2)
of the Act is only directory and thus, the decree-holder
cannot be nonsuited for the reason that such relief was
not granted in the decree for specific relief.
30. The defendant in terms of the agreement is bound to
handover possession of the land agreed to be sold. The
expression “at any stage of proceeding” is wide enough
to allow the plaintiffs to seek relief of possession even at
the appellate stage or in execution even if such prayer
was required to be claimed. This Court in Babu Lal has
explained the circumstances where relief of possession
may be necessary such as in a suit for partition or in a
case of separate possession where the property conveyed
is a joint property. In the suit for specific performance,
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[2026:RJ-JD:19553] (9 of 11) [CW-23499/2025]that the decree-holders are in fact entitled to possession
in pursuance of the sale deed executed in their favor.
31. The judgment debtor in the written statement has
admitted that the property is a vacant land and that she
has sold other portion in favor of one Lakshmipathy. The
stand of the judgment debtor now that the respondent is
in possession of 750 sq. feet would not defeat the right of
possession of 2400 sq. feet of an area which she has
agreed to sell to the plaintiffs in respect of which decree
was passed. All sales affected, and the construction, if
any, raised are subject to lis pendens and no legal or
equitable rights arise in favour of the purchasers during
the pendency of the proceedings. Therefore, the decree-
holders are entitled to actual physical possession of 2400
sq. feet of land which was agreed to be sold to the
appellants.
32. The appeal is thus allowed. The order passed by the
High Court is hereby set aside. The Executable Court
shall ensure that such decree is executed and if any
construction is raised on any part of the land agreed to
be sold, the possession shall be delivered with or without
construction in accordance with law.”
20. Thus, in view of the submissions made by learned counsel
representing the parties and applying the ratio of the decision
given by Hon’ble the Apex Court in the case of Hemant Gupta
(supra), this Court is of the opinion that the impugned order dated
16.07.2019 (Annexure-6) passed by Additional District Judge
Srikaranpur District Sri Ganganagar in Execution Case
No.27/2018 (Narendra Kumar Vs. Ramji Lal & Ors.) does not
suffer from any error, illegality or infirmity warranting interference
therein, as the court below had specifically directed the petitioner
defendant for execution of the sale deed and for the registration of
the sale deed as well and thus, once, the sale deed is executed and
registered, the possession of the land in dispute is ancillary and in
such a case, it is open for the plaintiff/ respondent to make a prayer
at the time of filing the execution of decree and judgment for
delivery of the possession of the land in question in his favour.”
25. The reliance placed by the petitioner on the judgment in
Babu Lal‘s case (supra) is misplaced. In fact, the said judgment
recognizes that the Court is empowered to grant possession even
at a later stage and that such relief is not barred merely because
it was not specifically claimed, particularly when it is incidental to
the relief of specific performance. Thus, the said authority, instead
of supporting the petitioner, fortifies the case of the respondent.
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26. Similarly, the judgments cited by the petitioner in Adcon
Electronics Pvt. Ltd. (supra), Ramdas (supra) and Dhara
Singh (supra) are distinguishable on facts. Those cases turned on
specific pleadings, nature of relief claimed or procedural
limitations at the stage of institution of the suit, and do not lay
down an absolute proposition that possession can never be
granted in execution if not expressly decreed. None of the said
decisions deal with a situation where the decree has been fully
acted upon by execution of the sale deed and only consequential
possession remains to be delivered.
27. On the contrary, the principle that possession is a natural
and consequential relief flowing from a decree for specific
performance stands reinforced by subsequent judicial
pronouncements, including the decision relied upon by the
respondent in Manickam @ Thandapani (supra), wherein it has
been held that the Executing Court can grant such ancillary reliefs
to make the decree effective.
28. The argument regarding joint and unpartitioned nature of the
land also does not advance the case of the petitioner. In view of
Section 44 of the Transfer of Property Act, a transferee of a co-
sharer’s interest is entitled to joint possession and other rights
available to the transferor. The Executing Court, by directing
delivery of possession, cannot be said to have granted exclusive
possession of a demarcated portion contrary to law. The petitioner
cannot resist execution on the ground of alleged rights of co-
sharers, particularly when such objections were available at the
stage of trial and stood impliedly rejected.
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29. The contention regarding pendency of a revenue suit and
interim injunction is equally devoid of merit. As rightly pointed out
by the respondent, the subject matter of the revenue proceedings
is distinct.
30. So far as the plea regarding mortgage in favour of Punjab
National Bank is concerned, the same does not create any legal
impediment to execution of the decree. The rights of the
mortgagee, if any, remain protected in accordance with law, and
such plea cannot be used by the judgment-debtor to resist
delivery of possession to the decree-holder. In any event, no
objection relating to the pendency of a revenue suit, interim
injunction, or the alleged mortgage was raised before the
Executing Court.
31. This Court also finds that the objections raised by the
petitioner are repetitive in nature and aimed solely at delaying the
execution of a decree passed more than two decades ago.
32. In view of the foregoing discussion, this Court is of the
considered opinion that the impugned order dated 19.11.2025
passed by the Executing Court does not suffer from any
jurisdictional error, illegality or perversity warranting interference
under Article 227 of the Constitution of India.
33. Accordingly, the writ petition fails and is hereby dismissed.
34. Stay petition as well as all pending application(s), if any,
shall also stand disposed of.
(MUKESH RAJPUROHIT),J
79-/Inder//-
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