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Report No. 147

Chapter 7

Possession and Partition

7.1. The object of section 22, newly introduced in 1963, was to enable parties to sue in one suit for specific performance as well as possession, etc. This provision was considered necessary because, under the 1877 Act, some High Courts had taken the view that since title would pass only after specific performance is decreed, possession could be claimed only thereafter in a separate suit. Other High Courts, however, favoured the view that possession could be asked for in the same suit. Some courts1 went to the extent of saying that even if there was no prayer for possession in the suit, it could be claimed in execution proceedings in the suit after the deed is got executed in pursuance of the decree. In Babu Lai v. Hazarilal Kishorilal, AIR 1982 SC 818, the Supreme Court, analysing the provisions of section 22(2), observed:-

"The word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process; any act done by authority of a court of law any step taken in a cause by either party". The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute.

It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in section 22 includes execution proceedings also. In Rameshwar Nath v. Uttar Pradesh Union Bank Ltd, AIR 1956 All 586 such a view was taken. It is a term giving the widest freedom to a court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution."

Section 22, read with the above decision, gives legislative recognition to the latter of the two views set out earlier. It, however, appears desirable to clarify the position and incorporate the effect of the decision of the Supreme Court by adding, after the word 'proceeding' in the proviso to section 22(2), the words 'including a proceeding in execution'. We recommend accordingly.

1. Arjun v. Sahu, AIR 1950 All 415; Kartik v. Dibaker, AIR 1952 Cal 362; Shyama v. Duli Chand, 1987 All 1_,J 148.

Specific Relief Act, 1963 Back

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