Summary
After the Supreme Court had dismissed the appellant's suit for specific performance as barred by Order II Rule 2 CPC but awarded him Rs. 2 crores in lieu of Rs. 25,000 earnest money, the appellant refused the tender and resisted execution to keep possession of the ground floor. The Court upheld the issue of warrants of possession with police assistance, holding that a purchaser whose possession rested only on the failed agreement to sell cannot both keep possession and take the compensation, and dismissed the appeal with costs of Rs. 10 lakhs.
Issues
- Whether the appellant, whose suit for specific performance had been dismissed with an award of Rs. 2 crores in lieu of earnest money, could resist delivery of possession in execution.
- Whether the appellant could invoke Section 53-A of the Transfer of Property Act, 1882 and insist that the respondents file a separate suit for possession.
- Whether the omission in the earlier judgment to direct handing over of possession could be used by the appellant to retain possession.
Provisions considered
- Section 53-A, Transfer of Property Act, 1882The appellant argued that, being in possession under the agreement to sell, he was protected by part performance until a decree of eviction. The Court rejected this because the claim to possession rested solely on the agreement to sell, the suit for specific performance had been dismissed and he had been amply compensated; he could not insist on a separate suit for possession. (¶¶ 12, 13)
- Order II Rule 2, Code of Civil Procedure, 1908Recited as the ground on which the Court's earlier judgment of 01.04.2025 had dismissed the suit for specific performance, the earlier injunction suit and the specific performance suit resting on the same cause of action. (¶ 4)
Held
- The respondents were not in default: the Rs. 2 crores was tendered by fixed deposits with the execution application within the three months allowed by the earlier judgment, and the appellant had unnecessarily delayed and obstructed execution. (¶ 9)
- Once specific performance was refused, the award of Rs. 2 crores, far exceeding refund of earnest money even with high rates of interest, was meant to balance the equities and keep the property with the respondents; a purchaser inducted into possession only because of the agreement to sell, and not as tenant, licensee or lessee, has no right to resist delivery of possession. (¶ 10)
- The appellant had no locus to retain possession also because his earlier suit for permanent injunction founded on that possession had been dismissed and attained finality, and his continued possession was not pointed out when the earlier appeals were heard. (¶ 11)
- A party cannot enjoy possession and at the same time receive the compensation awarded in lieu of specific performance, nor require the vendor to file a separate suit for possession; Section 53-A did not avail him, and the decision relied on by him was distinguishable on facts. (¶¶ 13, 14)
- Under the maxim actus curiae neminem gravabit, no party should suffer from an omission of the Court; the failure of the earlier judgment to state expressly that possession was to be handed over could not be exploited, and the Court must restore the party to the position it would have occupied but for the omission. (¶¶ 14, 15)
- The Executing Court and the High Court were right in directing warrants of possession with police assistance. (¶ 16)
Result
Appeal dismissed with costs of Rs. 10,00,000 payable by the appellant to the respondents within four weeks, failing which interest at 12% per annum; proof of payment within six weeks, else the Registry to list the matter.