Specific Relief Act (SRA)
Power to Grant Possession, Partition and Refund: Section 22
Winning a decree for the sale of land is only half the battle if the buyer must then bring a fresh suit to get possession. Section 22 prevents that. It lets a buyer ask, in the very suit for specific performance, for possession or partition, and, in the alternative, for a refund of his earnest money or deposit if performance is refused. There is a catch: these reliefs must be specifically claimed. This note explains the reliefs, the earnest-money and advance-money distinction that governs refund, and how the section works in practice.
Figure: Section 22: possession or partition, refund in the alternative, the requirement to claim, and the earnest-versus-advance distinction
1. The Reliefs: Section 22(1)
What may be asked for in the same suit ▪ (a) Possession or partition. In a suit for specific performance of a contract to transfer immovable property, the plaintiff may also ask for possession, or partition and separate possession, of the property, in addition to the transfer. ▪ (b) Refund in the alternative. He may ask, in the alternative, that if his claim for specific performance is refused, he be awarded a refund of any earnest money or deposit paid, with interest, or the return of any other sums the contract entitles him to. |
2. The Reliefs Must Be Claimed: Section 22(2)
A rule of pleading ▪ The requirement. No relief under clause (a) or (b) is granted by the court unless it has been specifically claimed. ▪ Amendment allowed. The court permits the plaintiff to amend the plaint, on such terms as are just, at any stage of the proceeding, to include a claim for such relief. ▪ Why it matters. A decree of sale without a claim for possession may leave the buyer to a fresh suit for possession, which Section 22 exists to prevent. |
3. Earnest Money and Advance Money
Basis | Earnest money | Advance or part payment |
|---|---|---|
Character | A guarantee of performance and a token of good faith, and part payment | Simply a payment towards the price |
On the buyer's default | May be forfeited, if the contract so provides and the sum is reasonable | Generally refundable; not forfeited merely because the buyer defaulted |
Refund under s. 22 | Ordered where forfeiture is not justified or performance is refused without the buyer's fault | Ordered as return of money paid towards the price |
Test | Was the sum intended as a guarantee of performance? | Was the sum merely part of the price? |
Whether a sum is earnest money or a mere advance is a question of the intention shown by the contract. Earnest money, reasonably fixed, may be forfeited on the buyer's default under a valid forfeiture clause; a sum that is only part payment of the price is, as a rule, returned if the sale falls through, subject to any proven loss.
4. Section 22 and Section 21 Compared
- Section 21 deals with compensation for the breach, in addition to or in substitution for performance.
- Section 22 deals with the consequential reliefs that flow from a decree of sale (possession, partition) and with the refund of sums paid if performance is refused.
- Both share a rule: the relief must be claimed, and the plaint may be amended to claim it; both exist to settle the whole matter in one suit.
5. Frequently Asked Questions
Q. Can a buyer ask for possession in a specific-performance suit?
A. Yes. Under Section 22(1)(a), a buyer may ask, in the same suit, for possession, or partition and separate possession, in addition to the transfer of the property.
Q. What is the alternative relief of refund?
A. Under Section 22(1)(b), the buyer may ask that, if specific performance is refused, he be refunded his earnest money or deposit with interest, or returned any other sums the contract entitles him to.
Q. Must possession and refund be specifically claimed?
A. Yes. Section 22(2) provides that no such relief is granted unless specifically claimed, though the court may allow the plaint to be amended at any stage to include the claim.
Q. Is earnest money always refundable?
A. No. Earnest money may be forfeited on the buyer's default if the contract so provides and the sum is reasonable; a mere advance towards the price is generally refundable.
SEO METADATA URL slug: possession-partition-refund-section-22-specific-relief-act SEO title: Power to Grant Possession, Partition and Refund: Section 22 of the Specific Relief Act Meta description: Section 22 of the Specific Relief Act 1963: the buyer's right to claim possession or partition, and refund of earnest money or deposit in the alternative, in the specific-performance suit, and the earnest-versus-advance distinction. Keywords: Section 22 Specific Relief Act, possession in specific performance, refund of earnest money, earnest money vs advance, Section 22 must be claimed |