Subodh Kumar Banerjee v. Hiramoni Dasi And Others

S.R Das Gupta, J.:— The appellant before us was one of the judgment-debtors. The appeal arises out of an application under Section 47 of the CPC, filed by the appellant. The suit out of which the application under Section 47 of the CPC, arose was a suit for specific performance of a contract. There were several defendants of whom the judgment-debtor was one. The judgment-debtor was the transferee from the original vendor who was also made one of the defendants in the suit. The appellant had purchased the said property with knowledge of the agreement for sale made with the purchaser. In the plaint which was filed one of the prayers was that the contract for sale be specifically performed.

2. The suit was decreed by the lower Court and the opening words of the decree were that the suit be decreed with costs. In the subsequent portion of the said decree it was stated that the defendants on getting the payment of the consideration money do execute and register a conveyance in favour of the plaintiff and the plaintiff do deposit in court the balance of the consideration money and that the defendants do pay the costs of the suit. Having obtained that decree an application was made, in execution thereof, for possession of the property in question by the decree-holder. The execution proceedings were resisted by the present appellant who, as I have indicated, was one of the judgment-debtors and he made an application under Section 47 of the CPC. The contention raised before the trial Court by the appellant was that the decree which was passed did not entitle the plaintiff to obtain possession of the property in other words, it was contended that the decree did not direct delivery of possession but only directed the defendants to execute a conveyance and register the same on getting the purchase-money and in the circumstances the plaintiff decree-holder cannot obtain possession of the property in execution of the said decree. This contention of the appellant was overruled by the lower Court. There was an appeal against that order. That appeal was also dismissed. Both the Courts in coming to the said decision relied upon the case of — ‘Arjun Singh v. Sahu Maharaj Narain’, AIR 1950 All 415 (A), where it was held that the delivery of possession was incidental to the execution of a deed of sale. Against that order the present appeal has been filed in this Court.

3. Unfortunately, the respondent did not appear at the hearing of this appeal and the appeal was going undefended. Having regard to the importance of the question involved in this appeal we thought it proper to request some learned Advocate to argue the matter ‘amicus curiae’. We requested Mr. Amarendra Mohan Mitra to help the Court in this matter. He was good enough to lend his assistance and we are obliged to him for the same.

4. The learned Advocate for the appellant put forth the same contentions which were urged before the lower Courts. It was contended that the decree did not entitle the decree-holder to obtain, possession in execution of the same; in other words, the decree only directed the judgment-debtors to execute the conveyance and to register the same on receipt of the consideration money. Therefore, the learned Advocate urged, the lower Courts were wrong in allowing this decree to be executed for possession.

5. It should be remembered that in the plaint which was filed the first prayer was that the contract of sale be specifically performed and it should also be remembered that the opening, words of the decree that the suit be decreed on contest with costs. The question which arises is what is the effect of the decree in these circumstances? It is true that the subsequent portions of the decree only directed the defendants to execute the conveyance and register the same and there is no specific direction upon the defendants to give delivery of possession to the plaintiff. But does it follow therefrom that the decree which was passed did not include a direction for delivery of possession to the decree-holder?

6. In the case of — ‘Herambachandra v. Jotishchandra’, AIR 1932 Cal 579 (E) Rankin, C.J dealing with the question as to this form of a decree for specific performance observed that the usual form of a decree in a suit for specific performance is to declare that the agreement ought to be specifically performed and the Court doth order and decree that the same be specifically performed. Following the above observations of Rankin, C.J a Division Bench of this Court in a recent decision — ‘Kartick Chandra v. Dibakar Bhattacharjee’, AIR 1952 Cal 362 (C) held that the most important part of such a decree is that portion where the Court directs the contract to be specifically performed, and the details which follow do not in any way limit the jurisdiction of the executing Court to the particular steps which are mentioned in the decree but all other steps which ought to be taken for giving full effect to the decree for specific performance are not only within the competence of the Court but the Court is bound to assist the party to that extent.

7. If then the decree is not to be limited only to the matters specifically mentioned therein but to all other steps which ought to be taken for giving: full effect to the decree for specific performance, the next question which arises is whether or not the judgment-debtor is bound to give delivery of possession to the plaintiff in order to give full effect to the decree for specific performance; in other words, does specific performance of a contract include delivery of possession by the vendor to the purchaser? For this purpose reference has to be made to Section 55 of the Transfer of Property Act, which ‘inter alia’ lays down as follows:

“In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold. * * * (f) to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.”

8. Thus unless there is a contract to the contrary, giving delivery of possession to the buyer by the seller is an incident of a contract for sale and when there is a decree directing the contract to be specifically performed it includes a direction jupon the vendor to give delivery of possession to the purchasers.

9. This was also the view taken in the said case of AIR 1352 Cal 362 (C) to which I have already referred. R.P Mookerjee and J.P Milter, JJ. held in that case that in a suit for specific performance of a contract for sale of land the right to recover possession springs out of the contract which is being specifically enforced and not as to result of the execution and completion of the conveyance. He facts in that case were in all respects similar to the facts in the present case. There also the opening words of this decree were that the suit be decreed on content with costs. Further directions followed the said words but there was no specific direction upon the defendant to give delivery of possession to this judgment-creditor. Nonetheless their Lordships held that the defendants were bound under the said decree to give ??? of possession to the plaintiff. The reason for that decision was that the suit being a suit for specific performance of a contract and one of the incidents of the contract being that the seller on being so required was to give delivery of possession to the buyer and the said suit having been decreed the direction to give delivery of possession becomes a part of the decree and the defendant is bound to take all steps to give full effect to the decree for specific performance. As I have already indicated, we take the same view as was taken by their Lordships R.P Mookerjee and J.P Mitter, JJ.

10. Some other decisions were cited before us but it is not necessary for us to go into the details of those decisions. I would only mention that in a Patna decision — ‘Atal Behary Acharya… v. Barada Prasad Banerji….’, AIR 1931 Pat 179 (D) their Lordships Wort and Mahomed Noor, JJ. held that even if there is an omission in the plaint or in the decree about possession the executing Court is not debarred from granting the plaintiff the possession of the property. In this case, of course, it is not necessary for us to go to that extent. There was a prayer in the plaint for specific performance of the contract and the suit has been decreed which means that the contract has to be specifically performed. In the circumstances we hold that the contention of the learned Advocate for the appellant on this point must fail.

11. The learned Advocate then contended before us that the present case is distinguishable from the cases which were cited before us because in this case his client was not a party to the agreement. As I have already indicated, the appellant before us was a purchaser of the property from the vendor with knowledge of the agreement for sale he was made a party to the suit and in our opinion rightly. The decree was passed against him. The decree directed that the contract is to be specifically performed, one of the incidents of the contract, as I have indicated, is to give delivery of possession. Therefore, the appellant against whom the decree was passed was bound to give delivery of possession to the decree-holder. The fact that he was not a party to the original agreement, in our opinion, makes no difference. He was undoubtedly a representative of the original vendor and as such is bound by the contract into which his predecessor-in-interest had entered. In my opinion there is no substance in this contention.

12. In the result, therefore, this appeal is dismissed. There will be no order as to costs. We once again express our gratitude to Mr. Mitra for the assistance he has given to the Court.

Mallick, J.:— I agree.

K.S.B

13. Appeal dismissed.