Atal Behary Acharya vs Barada Prasad Banerji

Wort, J.—Amongst the property in dispute in this case was plot No. 7259 but it is now admitted that the decree-holder is not in possession and he does not lay any claim to it.

As regards the appeal itself I should be content in this case to uphold the order of Mr. Misra when he decided that he had no jurisdiction to entertain the application u/s 47, Civil P.C. What happened was this: Mr. Mahanty the Munsif who granted a decree in an action for specific performance, subsequently placed the decree-holder in possession of the property, the subject matter of the suit. An application was then made by the judgment-debtor u/s 47, Civil P.C., which came before Mr. Misra the successor of the learned Judge who made the decree and ordered possession, the contention of the judgment-debtor being that Mr. Mahanty had no right to order delivery of possession. As I have already indicated, the learned Munsif, Mr. Misra, came to the conclusion that he had no jurisdiction to entertain such an application u/s 46. It is quite clear that the substance of the application related to the giving possession itself and not the manner in which possession had been given or the property over which possession had bean so given and therefore in effect it was an appeal to the successor of the Munsif who had ordered possession to be given. In my judgment that application was incompetent, but as the substantial question of whether the Court had a right to give possession has been raised, I propose to deal with the matter.

The argument of the learned advocate on behalf of the respondent is this: that the prayer in the suit did not claim possession and consequently the Court which executed the decree by ordering the execution of the kobala had no right to order possession. Reliance is placed on the authority of Krishnammal v. Manandiar Sundararaja Aiyar [1914] 38 Mad. 688, but in so far as that held that an executing Court had no right to deliver possession to the decree-holder in an action for specific performance, that proposition has been expressly dissented from in the case of Deonandan Prasad Singh v. Janki Singh [1920] 5 Pat. L.J. 314. That was a case in which a share in a mouza had been sold in execution to the defendant. Subsequently that sale was set aside and the Court ordered a conveyance by the defendant to the plaintiff. The matter went up to the High. Court and subsequently to the Privy Council; but although both the High Court and the Judicial Committee of the Privy Council contented themselves with an order of the execution of the necessary documents no order being granted for possession, yet it was held that the executing Court had a right to order possession of the property, the subject-matter of the suit. The proposition is set out in these words in the judgment of Mullick, J.:

We think therefore that the first objection (i.e. the objection that the Court had no right to give possession) must fail and upon the officer of the Court executing the document on behalf of the judgment-debtor if he refuses to execute it a right to possession vests in the decree-holder which can be enforced by the execution. Court.

In my judgment it is sufficient authority to establish the proposition which the learned advocate on behalf of the appellant urges before us.

But there are other reasons apart from the authority which would entitle this Court in my judgment to hold that the order of the learned District Judge was wrong and must be set aside." u/s 55, T.P. Act, one of the implied conditions of a contract for sale of immovable property is to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits. As Mullick, J., points out in the course of the case to which I have just made reference that incidental to the relief to which the plaintiff is entitled in a decree for specific performance arising on a contract for sale is that possession should be given. I shall make reference to Order 21, Rule 32 which under Clause (5) provides that where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment debtor, and so on. I have no doubt in my own mind that Mr. Mahanty the learned Munsif in pursuance of his decree for specific performance in this actions had a right to grant possession of the property; he had abundant authority in law to do so and he was by no means exceeding the right of an executing Court. Consequently the order which was subsequently made by the learned District Judge that he had no jurisdiction was in my judgment wrong in law and must beset aside.

The appeal is allowed with costs.

Mahomed Noor, J.

I agree. I wish to add a few remarks of my own. Much stress has been laid upon the fact that prayer for possession was not included in the plaint nor was it granted by the decree. It has more than once been laid down by their Lordships of the Privy Council that the pleadings in India should not be scrutinized with the standard prevailing in England. Here the pleadings specially in the mufassil Courts are drawn up by lawyers who are not generally familiar with the precision of the English pleadings, and we should therefore in this case look to the substance of the plaint rather than to its wording. There is no doubt that the plaintiff''s suit was for specific performance of contract of sale. It would have been quite enough for him if he would have simply prayed that the defendant be directed to specifically perform the contract for sale. If that relief was granted by the decree everything which was necessary for the contract to be specifically performed could have been ordered and enforced in the execution. As has been pointed out by my learned brother a contract for sale includes not only the execution of necessary document which is required by the Transfer of Property Act but also putting the vendee in possession of the property sold. Therefore it cannot be said that if there was an omission in the plaint or in the decree about possession the executing Court is debarred from giving the plaintiff what is incidental to his right of having the contract specifically performed. The case in Deonandan Prasad Singh v. Janki Singh [1920] 5 Pat. L.J. 314 which has been referred to by my learned brother clearly shows that in spite of the fact that the decree of the Calcutta High Court and that of their Lordships of the Privy Council did not grant to the plaintiff possession of the property, the learned Judges who decided the appeal in the execution case held that the plaintiff was entitled to possession as a necessary incident to his right of getting a document of reconveyance from the defendant. I therefore agree that this appeal must be allowed and the order of the District Judge set aside.