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2022 (4) TMI 1599 - SC - Indian LawsMaintainability of execution petition - Seeking possession of the property of which sale deed was executed - HELD THAT:- The High Court has completely misdirected itself in accepting the petition Under Article 227 of the Constitution of India and directing the decree-holders to file a suit for possession by misreading the judgments referred to. There was no provision in the Specific Relief Act, 1877 corresponding to Section 22 of the Act. Section 22 came to be part of the Act, in pursuance of the recommendation of Law Commission in its 9th Report submitted on 19th July, 1958. 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 - 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. 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. 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 - Appeal allowed.
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