Dadulal vs Deokunwar

N.M. Golvalkar, J.—This is an appeal by the decree-holder against the order of the 2nd Additional District Judge, Durg, setting aside the order of the executing Court dated 19-7 1956 ordering delivery of possession of suit lands to the decree-holder.

Briefly stated the facts giving rise to this appeal are these. Plaintiff, Dadulal, had filed a suit for specific performance of contract against one Mantrilal (Defendant No. 1) who bad contracted to transfer the suit lands to the Plaintiff by a contract dated 9-11-1946 (Ex.P-1) but instead of transferring the land to him he transferred the same to Smt. Deokunwarbai and Shantilal (Defendants 2 and 3). These Defendants were, therefore, joined as purchasers of the land subsequent to the contract in favour of the Plaintiff and, therefore, bound by it. The suit was decreed and the decree was maintained in second appeal also before the High Court. In pursuance of the decree all the 3 judgment-debtors (Defendants) were called upon to execute sale-deed but having failed to do so the Court executed the necessary, sale deed in favour of the Plaintiff-decree-holder. Thereafter the Plaintiff decree-holder applied to the executing Court for being placed in possession of the property conveyed. The claim for being placed in possession was resisted by the judgment debtors (Defendants 2 and 3 only) on the ground that the decree did not grant the relief of possession and hence the executing Court had no jurisdiction to order delivery of possession. It was contended that the only remedy the decree-holder had was to file a suit for possession. The executing Court negative he contentions of the judgment-debtors and decided to proceed with delivery of possession of the property The judgment-debtors challenged this order in appeal where they succeeded and the order of the lower Court was set aside. It was held by the lower appellate Court that the decree had not granted the relief of possession and, therefore, the executing Court had no jurisdiction to order delivery of possession to the decree-holder in execution proceedings. Hence this second appeal.

In my view the decision of the lower appellate. Court is manifestly erroneous and is based on mis-interpretation of the decree in suit as also on the erroneous view of the law on the subject.

It is not disputed that the Plaintiff besides claiming specific performance of than contract evidenced by Ex. P-1 had also claimed the relief of possession over the property on in question and the claim in suit was decreed. The lower appellate Court last sight of the real operative part of the decree and laid un-necessary emphasis on other portions in then decree, which in my view, were strictly not necessary. In any case they were mere directions for purposes of giving effect to the real decree that was being passed. I may usefully, therefore, quote the final decision of the Court:

issue No. 4: The Plaintiff therefore becomes entitled to the relief claimed, suit is hence decreed. Defendants 2 and 3 shall pay the costs of the Plaintiff. Defendant to bear their own costs. Plaintiff shall deposit into Court Rs. 664 for payment to Defendant Mantrilal. Defendants shall execute a sale-deed for suit lands in of the Plaintiff and get it registered.(sic) fee Rs. 50/- if certified. (The under lining is by me).

The real operative part of the decree was therefore, this:

The Plaintiff, therefore, becomes (sic) to the relief claimed. Suit it hence decreed.

In appeals against this decree before the first appellate Court as also before the second appellate Court the operative portions of their respective decrees were as under:

first appellate Court:

It is ordered and decreed that the appeal "fails and is hereby dismissed, and the decree of the lower Court is confirmed. (The underlining is by me)

Second appellate Court:

This Court doth order and decree that the decree of the lower appellate Court be and hereby is confirmed and this second appeal dismissed. ( The underlining is by me).

Thus, it will be seen that in both the Appellant. Courts the decree as was passed by the first court was Confirmed and maintained. In my view it means that when the Plaintiff was could entitled to the relief claimed the decree necessarily would be deemed to have gran(sic) the relief for possession also although not so expressly stated therein. In this view it has to be held that the Court passing the decree had in mind the entire relief clause of the plaint and decided to grant and did grant the relief of possession also. It would, therefore, be not correct to say that the decree in suit had not granted the relief of possession either expressly or by implication.

It will be pertinent to note that the CPC does not prescribe any particular form for a decree for specific performance of a contract or for restitution of conjugal rights or for any injunction although in appendix D to Schedule I of the CPC certain forms have been prescribed and are being used with such variations as the circumstances in each case require. The decrees passed in such suits claiming specific performance of a contract are executed under. Order 21, Rule 32 read with Rule 34, of the CPC Code. I may refer to the following observations made by a Division Bench of the Allahabad High Court in the case of Someshwar Dayal and Others Vs. Widow of Lalman Shah and Others,

The Code does not presecribe any particular form for the drawing up of a decree for specific performance as it does, in the case of some other decrees nor does the Code indicate the contents of such a decree as it does in the case of a decree in a per-emption suit as provided for by Order 20, Rule 14 of the Code All that a decree for specific performance can properly contain is an adjudication to the effect that the Plaintiff was entitled to the enforcement of the contract which the Defendant had enteed(sic) into with him for the sale of a certain property for a certain specified sum. The power of the Court to fix a period for the deposit of the same consideration a not provided for specifically, either in the CPC or in the Specific Relief Act". Indeed S. 35 of the Specific Relief Act indicates a contrary intention, for S. 35 indicates that in the event of a party to the decree being in default another party could either file a suit for the rescission of the contract on which specific performance had been granted or he could even apply to that Court which could then rescind the decree. It is no doubt true that in this country usually when Courts pass a decree for specific performance, they fix a time during which the Plaintiff is enjoined to pay consideration and thereby get a proper sale in respect of the property. But this is more for purposes of convenience rather than in compliance with any provision of law." (The underlining is by me).

In fact the Division Bench of the Madras High Court in the case of Abdul Shaker Sahib Vs. Abdul Rahiman Sahib and Another, held that the proper form for a decree for specific performance was not to make the relief granted to the Plaintiff conditionally upon his paying the sum within a specified time. The decree for specific performance only declares the rights of the decree-holder to have a transfer of the property covered by the decree executed in his favour. It necessarily means that the decree merely recognises the rights of the decree-holder to specifically enforce the contract against the judgment-debtors who also in terms of the decree is held liable to perform his corresponding part under the decree.

It was urged that the contract in suit (Ex. P. 1) is silent as to the delivery of poison of the property intended to be convey by the vendor. But it was accepted that this alience would not mean that the vendee would not be entitled to claim possession over the property from the vendor. This is evident also from Clause (F) to Sub-section (1) of Section 55 of the Transfer of Property Act. It was nevertheless contended that as the right to claim possession accrues to the vendee only after the sale-deed is executed in his favour and not till then, there could be no question of enforcing any such right in the suit much less in the decree. In my view this is not the correct position. u/s 55 of the Transfer of Property Act the rights and liabilities of buyer and seller, in the absence of a contract to the contrary, have been enumerated and, as the contract in question (Ex. P. 1) Is silent and there being nothing to the contrary, as to the delivery of possession, it has to be held that the vendor Defendants had contracted with the Plaintiff-vendee to deliver possession to him over the property after execution, of the sale-deed in his favour. It was a part of the entire contract and had come into existence simultaneously with that part under which the sale deed was to be executed. The result, therefore, was that when the Plaintiff went to the Court claiming specific performance of the con tract(Ex. P. 1) and was declared to be so entitled, the Defendant judgment-debtors would be deemed to have been held also correspondingly liable not only to convey the property but also to place the Plaintiff decree-holder in possession thereof on being so required by him.

Then the position was that when the Court proceeded to execute the decree under Order 21, Rules 32 and 34, CPC Code, the judgment debtors were first called upon to obey the decree and on their failure to do so the Court proceeded to perform all that part which the judgment-debtors were called upon to perform. The position of the Court performing this part was that of the judgment-debtors. The Court was the statutory substitute for the judgment-debtors in the matter of performance of the terms of the decree. As to the position assigned to the Court, I may also refer to Sub-rule (5) of Rule 34 of Order 21, CPC wherein it is specifically slated that the execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely:

C. D., Judge of the Court of (or as the case may be), for A. B., in suit by E. F. against A.B.

and shall have the same effect as the exception of the document or the en-dormant of the negotiable instrument by the party ordered to execute or endorse the same.'' (This therefore, conclusively lays down that the Court executing the sale-deed acts either as statutory substitute or as an agent of the judgment-debtor. I am fortified in this by the rulings reported in Mohammod Wazir Choudhari Jahangiri AIR 1949 Lab. 72 , Gopi Nath Das Vs. Namai Charan Das and Another, Gur Sahai v. Girdhari Lal AIR Oudh 335 . In fact this substitution of the judgment debtor by the Court is so complete and perfect that if the judgment debtor (sic) prohibited from transferring the property the embargo automatically operates against the Courts also. This position is recognised in the ruling reported in the case of Hakim Enayat Ullah Vs. Khalil Ullah Khan and Another, . If once this position is accepted then there is no difficulty in answering the question whether the executing Court could place the decree-holder in possession of the property. Since under the Transfer of Property Act the right to ask for possession and right to obtain the same is implicit in the contract to transfer the property, then the decree-holder automatically gets that right to demand possession from the party conveying the property and that party in such a situation being only the Court, which had replaced the judgment-debtor and which bad to act, therefore, on his behalf as his statutory agent, it necessarily became liable to perform that part of the contract relating to delivery of possession also. What the Court did was nothing but obeying the decree recognising the contract including performance of such farther acts and things as would be found requisite to give full effect to the same. I am, therefore, clear that the executing Court in the situation, as in the instant case, was entitled to order delivery of possession to the decree holder. This right of the executing Court in fact is well recognised as its inherent right if the decree is silent about delivery of possession. The leading case on this subject is Atal Behary Acharya Vs. Barada Prasad Banerji, and the view therein was followed subsequently in Arjun Singh Vs. Sahu Maharaj Narain, , Kartik Chandra Pal Vs. Dibakar Bhattacharjee, , and Sri Sri Janardan Kishore Lal Singh Deo and Another Vs. Girdhari Lal Sunda, and I am in respectful agreement with the views expressed therein on the subject. The Respondent judgment-debtors referred to me to the ruling reported in Brijmohan v. Chandrabhagabai ILR 1948 Nag. 105, but in my opinion that ruling has no application to the facts in the instant case. In that case no relief at all for possession was asked for in the plaint.

I, therefore, accept and confirm the decision of the executing Court and set aside that of the lower appellate Court. As I am of opinion that the judgment debtors 2 and 3 contested the claim of the decree holder mala fide. I direct that they shall pay the costs of the Plaintiff decree-holder throughout in all the three Courts. I, therefore, allow this appeal, set aside the order of the lower appellate Court and maintain that of the executing Court.