Durgesh Kumari Devi vs Bimal Kumar Jhajharia and Others

Sabyasachi Mukharji, J.—This appeal arises out of the order and judgment passed by Mr. Justice Dipak Kumar Sen on the 24th February, 1981. By the said order and judgment, the learned Judge has dismissed the petition filed on behalf of the judgment debtor in his suit. It appears that on the 16th June, 1972, the predecessor in interest of the appellants Bhubaneswar. Prosad Singh Deo, the Raja of Panch Kote entered into an agreement with the respondent for sale of a portion of his property at 2;1, Loudon Street, Calcutta. The property at premises No. 21, Loudon Street. Calcutta comprised of about 1 bigha 7 cottahs and 4 chattaks. Bui the agreement for sale was for about b cottahs. It would be necessary, in view of the controversy raised in this case, to refer to the relevant portion of the terms of the agreement which, after setting out the recital of the parties, stated as follows :

2 The vendor has agreed to sell a portion of premises no. 21, Loudon Street, Calcutta measuring 8 cottahs more or less being the southern portion there of free from all encumbrances and charges whatsoever and on such representation of the vendor as to the said premises being free from all encumbrances and charges whatsoever the purchaser has agreed to purchase the said southern portion of the Paid premises together with structures thereon.

The agreement thereafter went on to state as follows : -

The vendor agrees to sell and the purchaser agrees to purchase all that piece or parcel of land including structure and boundary wall measuring 8 cottah; more or less being the southern portion being the corner plot facing both on Loudon Street and Short Street of the premises No. 21, Loudon Street, Calcutta and hereinafter referred to as the said southern portion1 together with all rights and easements appertaining thereto and inheritance there of in (sic) fee simple in possession or an estate equivalent thereto absolutely and free from all encumbrances and charge whatsoever at or for the price calculated at the rate of Rs. 22,000 - per cottah. The total price will be determined by the actual measurement of the said southern portion of the said premises, which in approximately 104 ft. on Short Street side and approximately 48 ft. on Loudon Street side.

The said predecessor in interest died intestate and, according to the present appellant, she is the sole heir ess, being the mother of the said predecessor in interest of the appellant There were other claimants including four minors through their mother claiming to be the wife of the said predecessor in interest. That is disputed and we are not concerned with that dispute be cause learned Judge had held that the mother alone was sufficient to represent the estate of Bhubaneswari Prosad Singh deo. since deceased. The said Bhubaneswari Prasad Singh Deo, as we have said before, died inteste on 2nd October, 1972. The respondent instituted this suit on 17th August, 1973 against the present appellant, and five others, mentioned hereinbefore for specific performance of the said agreement dated 16th June. 1972. On the 11th August. 1978 Mrs. Justice Padma Khas gir passed a decree for specific performance of the said agreement dated 16th June. 1972 against the appellant alone holding, inter alia, that as she was the mother of the Raja Bhubaneswari Pro-sad Singh Deo, she alone was competent to represent the estate, of the deceased. Bhubaneswari Prosad Singh Deo and that suit was maintainable against her alone. The decree was passed for specific performance of the agreement in respect of the property agreed to be sold.

There is one controversy which was sought to be raised. The decree directs, specific performance of a conveyance in favour of the plaintiff on the failure of the defendants to execute or register directing the Registrar of this Court to execute and register the (sic) on the failure of the defendants to obtain certificate u/s 230A of the Income Tax Act, 1961 and directing the said Registrar to apply for and obtain such certificate on behalf of the defendants on making satisfactory provisions for payment out of the agreed price the tax liabilities as provided in the said section for possession and also declaring that subject to the provisions contained in the terms of the agreement dated 16th June, 1972 for sale of the premises No. 21, Loudon Street, Calcutta, particulars whereof were set out in the schedule should be specifically performed. It was contended that in the schedule the particulars that were being included contained the particulars in its entirety of the premises no. 2|1, Loudon Street. Calcutta, viz, the property comprised of (sic) 7 cottahs 4 chattaks while the agreement was for the sale of more or less 8 cottahs of land. It was contended that the decree which was sought to be executed was not the agreement between the parties and specific performance of such a decree could not be had. In our opinion, the decree is clear enough to make it specific that specific performance would be of the portion of the land out of the said premises no, (sic) Loudon Street, Calcutta, which was agreed to be sold. It is possible and, in the context of facts and circumstances of this case, it is the proper interpretation of the decree that the decree directed specific performance of the portion agreed to be sold by the agreement dated 16 June, 1972. Therefore, it is not possible to accept the contention urged on behalf of the appellant before the learned Judge in execution that the decree was at variance with the agreement and the conveyance that was purported to be executed was not the bargain between the parties. Read in the proper light, as we read, in our opinion, on the proper interpretation it cannot be said that the decree was at variance or was vague. On the 6th February, 1980 a letter was sent by the advocate for the respondent to the appellant, at her residence at Panchkote. Then, several letters were written by the respondent''s advocate to the appellant between 1st August, 1980 and 15th November, 1980. The case of the appellant was that, as she was away from Panch Kote, she did not receive those letters On 18th November, 1980, Mr. Justice Dipak Kumar Sen passed an ex pane order directing the appellant to execute and register the deed of conveyance in favour of the respondent within three weeks from date and in default, the Registrar, Original Side, Calcutta, to execute the said deed. There was some controversy about the conveyance to be executed and this was clarified again by Mr. Justice Sen by the order that the cost need not be deducted from the money that was to be deposited by the respondent before getting the conveyance registered. We are not concerned with this controversy again. Thereafter it appeals that the matter was mentioned before Mr. Justice Sen on behalf of the advocate for the appellant and Mr. Justice Sen, as we have mentioned before, modified the draft conveyance in the manner following :

The order dated 18th November, 1980 is varied to the extent as follows :

The decree holder has no objection if Clause 6 of the draft conveyance is altered as follows :

The said Bhubaneswari Prosad Singh Deo died intestate on or about 2nd October, 1972. Sm. Mary Singh Dao, Rakish Singh Deo Rajesh Singh Dao, Rajesh Singh Deo and Raj Singh Dao have filed a title suit bearing Title Suit No. 12t4 of 1.972 in the City Civil Court claiming to be the legal heirs and representative of the sad Bhuhaneswari Prasad Singh Deo. The Registrar is directed to settle the conveyance; allotted and carry out the earliest order as directed. Ragistrar and all parties to act on a signed Copy of the minutes.

Thereafter, it is stated that the appellant returned to Panch Koto in the last week of December, 1983 and meetings were held in January, 1981, before the learned Registrar where (sic) the appellant and the respondent were present when the following objections ware raised by the respondent(f) against execution viz, (i) requisite permission had not been obtained nor application made under U. ban Land (Ceding & Regulation) Act for permission, (ii) Income Tax clearance certificate u/s. 230A Income Tax Act had not been obtained. (iii) the respondent was not entitled to adjust any amount towards cost against the sale price (iv) alleged survey of land by respondents was without notice to appellant and behind the appellant''s back. No joint survey was made and (v) the sale price should be deposited before execution. As it has not been deposited, there could not be any question of execution or registration. On the 13th January, 1981, the respondent deposited the portioned of balance consideration money being Rs 1,65,453.67 with the Registrar. On the 14th January. 1981, on mentioning by appellant''s counsel. Mr. Justice Sen was pleased to direct the appellant to make a formal application objecting to the proposed execution of the sale conveyance by 22nd January, 1981 and the Registrar was directed not to proceed with execution of the Conveyance till 27th January, 1981. The appellant was directed to deposit with her Advocate, Rs 5,000/- by 22nd January, 1981. In default whereof, the order was to stand vacated and the Registrar was at liberty to complete the execution M/s. Khaitan & Co. Advocates for the respondents forwarded a copy of the conveyance which was to be executed by the Registrar which conveyance was different from the previous conveyance forwarded to the appellants advocate Then, notice of motion was taken out raising objection to the execution After affidavits have been filed, on the 24th February, 1981 as mentioned hereinbefore, Mr. Justice Sen passed an order dismissing the objection petition and directing execution of the conveyance. This is an appeal challenging the propriety and validity of the said order of Mr. Justice Sen

Before us, several points were taken. The main point however, was that the decree baing in the nature of specific performance was a kind of preliminary (sic) Therefore, any execution of the conveyance pursuant to such a decree could not be a sale of the property by the Court. In that view of the matter it is contended that in view of the provisions or the Urban Land (Ceiling & Regulation) Act 1976 and in absence of any permission of the appropriate authorities., the premises in question could not be conveyed. This is one of the main contentions urged in opposition to the execution order passed by Mr. Justice Sen. In order to appreciate the contention it would be necessary to refer to certain provisions of the said Act. It would be necessary to refer first to Section 2(g) and 2(q) of the said Act. Section 2(g) is as follows :

(g) ''Land appurtenant'', in relation to any building, means-

(i) in an area where there are building regulations, the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building, which in no case shall exceed five hundred square metres; or

(ii) in an area where there are no building regulations, an extent of five hundred square metres contiguous to the land occupied by such building, and includes, in the case of any building constructed before the appointed day with a dwelling unit therein an additional extent not exceeding five hundred square metres of land, if any contiguous to the minimum extent referred to In sub clause (1) or the extent referred to in sub-clause (ii), as the case may be;

Section 2(q) describes the vacant land and it reads as follows :

(q) Vacant land'' means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include-

(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;

(ii) in an erea where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenanant to such building; and

(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and land appurtenant to such building;

Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of livestock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then so much extent of the lend as has been ordinarily used for the keeping of such cattle immedietely before the appointed day shall not be deemed to be vacant land for the purposes of this clause.

Section 4 of the Act deals with the ceiling limit in case of every person where the vacant land is situated in an urban agglomeration falling within Category A, specified in Schedule 1. This is the agglomeration with which the land in question is concerned, the ceiling limit is 500 sq. metres. Section 5 imposes a ban on transfer of vacant land and it would be necessary to set out the relevant provisions of Section 5. Section 5 provides as follows :

Section 5 : Transfer of vacant land :

(1) In any State to which this Act applies in the first instance, where any person who had held vacant land in excess of the ceiling limit at any time during the period commencing on the appointed day and ending with the commencement of this Act, has transferred such land or part thereof by way of sale, mortgage, gift, lease or otherwise, the extent of the land so transferred shall also be taken into account in calculating the extent of vacant land held by such person and the excess vacant land in relation to such person shall, for the purposes of this chapter, be selected out of the vacant land held by him after such transfer and in case the entire excess vacant land cannot be so selected the balance, or where no vacant land is held by him after the transfer, the entire excess vacant land, shall be selected out of the vacant land by the transferee :

Provided that where such person has transferred his vacant land to more than one person, the balance, or, as the case may be, the entire excess vacant land aforesaid, shall be selected out of the vacant land held by each of the transferees in the same proportion as the area of the vacant land transferred to him bears to the total area of the land transferred to all the transferees.

(2) Where any excess vacant land is selected out of the vacant land transferred under sub-section (i), the transfer of the excess vacant land so selected shall be deemed to be null and void.

(3) In any State to which this Act applies in the first instance and in any State which adopts this Act under CI. (1) of Art 252 of the Constitution no person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under Sec. 6 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of Section 10: and any such transfer made in contravention of this provision shall be deemed to be null and void.

Section 6 enjoins persons holding vacant land in excess of ceiling limit to file statement within certain time. Section 26 enjoins giving notice before transfer of vacant lands and section 27 provides for prohibition on transfer of urban land except under certain permission. Therefore, under the Act, one who comes within the mischief of the Act, cannot hold vacant land in urban agglomeration beyond 500 sq. metres. The vacant land, however, as we have noticed, must be vacant as defined in Section 2(g) and in order to compute that vacant land, the land appurtenant which includes not only the land, and land buildings, as contemplated by section 2(g) (i) or (ii), should have an additional extent not exceeding 500 sq. meters. In this case the land that is described to be sold is more or less 8 cottahs which contained certain structures and described to be in the agreement for sale containing certain structures as well as boundary walls. A point was taken that in the map produced for the conveyance, no structure was indicated. The draft plan was only a plan indicating the quantity of land and it was not a correct representation of the land or whether there was any boundary line or not. Even, on that plan, the land in question appears to be just by the side the land on the building line. Admittedly, there was a structure or a house. If the premises of the alleged structure was a dwelling unit of which none of the parties has indicated any evidence in this case, then, not only that dwelling unit but the area required to be kept vacant under the appropriate municipal regulation as well as an additional land appurtenant measuring 500 sq. meters was required to be excluded from the definition of vacant land. Whether this land in question which was agreed to be sold comes beyond this 500 sq. meters or not is not clear from the averments made. Certain statements had been made, not in the petition of objection, but in the affidavit in reply to the execution application which, in our opinion, cannot be set up at this stage to show that the land in question comes within the mischief of the Urban Land (Ceiling & Regulation) Act, 1976. Even the averments made in the affidavit in-reply do not give sufficient facts clearly and even they are taken on the face value do not indicate that the land in question would come within the mischief of the Urban Land (Ceiling & Regulation) Act 1976. The said averments are contained in paragraph 17 of the affidavit in reply which read as follows :

With reference to the allegations in paragraph 18 of the said affidavit, I repeat and reiterate the statements made in paragraph 21 of my petition and save what appears therefrom all allegations contrary thereto and/or inconsistent there with in the paragraph under reference are denied. I say that inter alia Section 26, 28 and other provisions of the Urban Land (Ceiling & Regulation), Act 1976 applies to the instant case inasmuch as the plot in question is a vacant land with no structures thereon. I deny that the plot is a land appurtenant to the main building and/or the existing structures on the land in question. Save, as aforesaid, I deny each and all the allegations in the paragraph under reference as if the same were specifically set out herein and denied seriatim. I deny that Sections 26 and 27 of the Urban Land (Ceiling & Regulation) Act, 1976 do not apply for the reasons alleged or at all. I deny that the plot has been purchased by the deponent or that the transfers arising out of Court''s orders are not in the nature of voluntary transfers as alleged. I deny that there is any transfer arising out of a court order or is a Court sale. I say the obligation if any arises out of an agreement tore sale being the subject matter of the suit. I reiterate that the Urban Land (Ceiling & Regulation) Act, 1976 applies to the instant case and no transfer can be made without permission of the Competent Authority appointed under the Urban Land (Ceiling & Regulation) Act, 1976. in the event it is held that the transfer of the disputed land is not hit by the Act then your petitioner states and submits that such transfer will be contrary to the provisions of the Calcutta Municipal Act directly or indirectly or will defeat the said Act and as such contrary to public policy or illegal. In any event as soon as the land is purported to be sold or conveyed it must be treated as in this case as vacant land and nothing else. Such transfer will be contrary to the, positive enactments aforesaid and public policy. Further and/or in any event this land would be in severable for the purpose of sale, construction or any other purpose Besides property in question the petitioner holds and or owns many other vacant lands within the urban agglomeration of Calcutta and has not yet submitted a statement u/s 6 of the said Act. Transfer of the disputed land is under the Act null and void and the Court had no jurisdiction to pass the decree for specific performance. In any event, land appurtenant to a building in Calcutta is in severable from the building and no construction can be made thereon either by the owners of the building or any purported transferee of. such land appurtenant to such building.

The objection in that paragration as would be evident was that no land vested u/s 6, but the provisions of Sections 26, 28 and other provision applied and therefore the permission of the appropriate authorities was required to be obtained. In that view of the matter, in our opinion, the learned Judge was right in rejecting the contention, on the materials before his Lordship, that the mischief of the Urban Land (Ceiling & Regulation) Act, 1976 applied to the land in question. So far as the applicability of Section 27 is concerned, it has been held by the Supreme Court in the case of Bhim Singh vs. Union of India, AIR 1981 SC 235 that Section 27 (1) in so far as it imposes a restriction on the transfer of any land in urban and urbanisable area with a building or a portion of such a building, which was within the ceiling area, is ultra vires. There the question was whether in view of the notification issued by the appropriate authorities the mischief of sections 26 & 27 applied. In this connection the circular issued by the authority under the Urban Land (Ceiling & Regulation) Act, 1976 is as follows :

It is clarified that the provisions contained in Sections 26 and 27 of the Act will apply in the case of voluntary transfers only. As transfers arising out of Court decrees or Court orders are not in the nature of voluntary transfers, the provisions contained in Sections 26 and 27 will not apply to them.

In this connection before we deal with the contention on behalf of the appellant about the question whether this is a voluntary sale or not it would be appropriate to refer, in order to determine the question what is the meaning of land appurtenant, to certain Government of India Circulars. In a Circular dated 21.5.76 being Circular G.I.M. of W. & H. bearing No. 1/72/76-UCU it was inter alia stated as follows;

(3) Additional extent of configuous land referred to in section 2(g)(H)-question whether any dwelling unit or non-dwelling unit could be constructed in the additional extent of vacant land.

A point was raised for clarification whether any dwelling unit or non-dwelling unit could be constructed in the additional extent of vacant land referred to in sub-section (g) of section 2 of the Act. This Ministry''s view was that so long as the construction of such dwelling unit or non-dwelling unit in the additional extent of land was permissible under the concerned building bye-laws, there should be no objection to such construction. The Ministry of Law have agreed with this view.

In a subsequent circular dated 18. 11. 76 bearing Circular G.I.M. of W & H. No. 1|85|76-UCU it was further stated as follows :

(4) Land appurtenant to a building with a dwelling unit which is being constructed on the appointed day

Sub-section (g) of section 2 of the Urban Land (Ceiling & Regulation) Act, 1976, provides, inter alia, that in the case of any building constructed before the appointed day with a dwelling unit therein, in addition to the open space for the enjoyment of such building restricted to 500 sq. metres, an additional extent not exceeding 500 sq. metres of land, if any, contiguous to such land would also be treated as land appurtenant thereto. However, sub-section (q) of section 2 of the Act provides. inter alia, that vacant land does not include the land occupied by any building which has been constructed before or is being constructed on the appointed day with the approval of the appropriate authority and the land appurtenant to such building. A question was, therefore, raised as to whether the additional extent of land of 500 sq. metres referred to above might be allowed also in the case of a building with a dwelling unit therein in which is being constructed on the appointed day with the approval of the appropriate authority.

The matter was considered in the first meeting of the Central Co-ordination Committee held on the 31st March and the 1st April, 1976, and it was fell, inter alia, that the additional extent of land contiguous to the minimum extent of land limited to 500 sq. metres required, to be kept as open space for the enjoyment of a building with a dwelling unit therein, should be allowed also in the case of such building, under construction on the appointed day. Subsequently there was unanimous support to this view by the states in view of the fact that the buildings under construction will be in accordance with plans which would have been approved prior to the appointed day, and the question of amending sub-section (g) of section 2 suitably is under the consideration of this Ministry separately.

In the meantime, the competent authorities in the States in which the Urban Land (Ceiling & Regulation) Act, 1976, has come into force would have received by State the statements of excess vacant land held by persons and would be scrutinising them. It is likely that applications might also have been received by State Governments from such persons holding vacant land as appurtenant to a building with a dwelling unit therein which was under construction on the appointed day requesting that they should also be allowed an additional extent not exceeding 500 sq. metres of land, if any, contiguous to the open space for the enjoyment of such building on the ground of undue hardship.

In the circumstances stated in paras 1 and 2 above, the Government of: India would advise the State Governments to consider u/s 20(1) (b) of the Act, such requests favourably, and allow the additional extent of land contiguous to the open space not exceeding 500 sq. metres in such cases on the same lines as has been provided for u/s 2(g) of the Act subject to such terms and conditions as may be deemed fit.

The purpose of our referring to these circulars is to high-light the question only whether a particular land comes within the mischief of the Urban-Land Ceiling Act and whether agreement for sale of such land and or conveyance in execution of the due specific performance of such land would come within the mischief of the provisions of the said Act would depend upon the relevant and material fact which unfortunately in this case the appellant at no stage adduced before the court or agitated before the court at the relevant, time. The agreement as it stands as well as the decree as it stands seem to indicate that the land in question does not come within the mischief of the said Act. It was the contention on behalf of the appellant that a convevance executed pursuant to a decree of court for specific performance is voluntary sale In aid of this proposition reliance was placed on a decision of the Allahabad High Court in the case of Hakim Enayat Ullah v. Khalil Ullah Khan, AIR 1933 All 432 where the Division Bench. of the Allahabad High Court observed that a decree for specific performance only declared the rights of the decree-holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself did not transfer the title. The Court further observed that this was so apparent, from the fact that in order to get the title to the property a decree holder had to proceed in execution in accordance with the pro visions of or. 21 of the Civil Procedure Code. So long as the sale deed was not executed, the Court observed, in favour of the decree-holder either by the judgment-debtor in the suit or by the court, the title to the property remained in the judgment-debtor and till the execution of the sale deed the decree-holder had no right to the possession of the property. It was only the execution of the sale deed that transferred title to the property. The sale deed executed by a court in pursuance of a decree for specific performance was a transfer, by the court on behalf of the judgment-debtor and it was the title of the judgment-debtor to the property that was transferred by the sale deed executed by the court. It the judgment-debtor was precluded from transferring his property by some statutory provision, the court could not, it was observed, in violation of that provision execute a sale deed In that case, however, it was found that u/s 7(3) of the U.P. Encumbered Estates Act. 1954 in respect of the land in question which was the subject matter of the appeal before the Division Bench of the Allahabad High Court there was a complete prohibition. Whether there was a prohibition or not did not depend on the determination of the question whether the land in question was a vacant land at all within the mischief of the Act. Therefore, in our opinion, the observations of the Division Bench referred to hereinbefore would not be of such assistance to the appellant.

Reliance was also placed on the observations of the Calcutta High Court in the case of Anandilal Poddar Vs. Gunendra Kr. Roy and Another, where the court observed as follows :

A decree for specific performance is in the nature of a preliminary decree and the original Court keeps control over the action and has full power to make any just and necessary orders therein, including in appropriate cases, ah extension of time. Such a decree operates in favour of both the parties, and the defendant in a suit for specific performance is as much entitled to enforce a decree as the plaintiff. A decree that an agreement ought to be specifically performed is against the plaintiff as well as against the defendant and in favour of the plaintiff. The passing of such decree does not terminate the suit.

The aforesaid observations again, in our opinion, do not resolve the controversy in the instant case. Assuming, as we must because of the observations of. the Calcutta High Court as well as the subsequent observation of the Supreme Court which we shall presently notice, that the decree for specific performance is in the nature of a preliminary decree, that by itself does not lead to the conclusion that action taken in execution of the preliminary decree of the court remains a voluntary act of the party. Our attention was also drawn to the observations of the Supreme Court in the case of Hungerjord Investment Trust Ltd. v. Haridas. Mundhra, AIR 1972 SC 1826 and reliance was placed on behalf of the appellant to the observations of the court at paragraph 22 onwards. There also the Supreme Court reiterated that the court retained power in a suit for specific performance until the decree was executed because it was in the nature of a preliminary, decree. As we have mentioned before, even if it is, as it must be, as held in view of the observations of the Supreme Court, that does not lead to the conclusion that a conveyance executed in pursuance of the order of the court became a voluntary act on the part of the parties concerned.

Another contention was raised on behalf of the appellant that is to. Say, in view of section 230A of the income tax Act, 1961 this conveyance could not be registered without the certificate u/s 230A of the Income tax Act. 1961. Now this question was examind by the learned single Judge of the Delhi High Court in the case of C.S. Loganathan Vs. P.L. Kapur and Another, . There the learned Judge observed that the provisions of section 230A of the income tax Act, 1961 which required that no registering officer should register a document which purported to transfer, assign, limit or extinguish the right, title or interest of any person to or in any property other than agricultural land valued at more than Rs. 50,000|- unless, the certificate prescribed therein was obtained, had no application to involuntary acts resulting in transfer, assignment, limitation or extinguishment of rights in property by the force of law or under an order of the court or under a decree, whether based on a compromise or otherwise. This judgment of the learned single Judge of the Delhi High Court was noted by a Division Bench of this Court consisting of R. M. Datta and C. K. Banerji JJ. in Appeal No. 8 of 1981 arising out of suit No. 1270 of 1959 (Rameswar Saraj v. Hongkong & Shanghai Banking Corpn,), judgment delivered on 24.2.81. There was no contrary decision of any High Court. But it is not necessary for our present purpose to decide this question finally because this problem would arise at the time of registering the conveyance. Therefore, this objection to the execution on behalf of the appellant cannot also be sustained.

On behalf of the appellant two other minor points were raised, on being that on a proper construction the decree seemed to indicate to convey the entirety of the premises as indicated in the schedule to the decree. As we have read the decree, it is clear that the decree should be so read that the portion agreed to be sold by the agreement dated 16th June 1972 out of the premises No. 2|l, Loudon Street has been mentioned in the schedule. We are of the opinion that would not create any difficulty. The second contention was that the land agreed to be sold was as indicated in the agreement approximately 104 ft. on Short Street and approximately 48 ft. on Loudon Street. With reference to the plan it was sought to be contended that the land indicated to be sold was slightly larger in proportion The expression used "approximately and it was agreed to sell 8 cottahs more or less therefore, in our opinion, does'' not m any way vitiate the decree or make the decree vague.

In view of the above facts the objections on behalf of the appellant fail. We are unable to accept the contentions urged on behalf of the appellant. The appeal, therefore, fails and is accordingly dismissed with costs.

Leave asked for to appeal before the Supreme Court is refused.

Stay is granted to the extent that the Registrar, C. S. ifs directed not to execute the conveyance for a fortnight from date.

Appeal dismissed with cost. C K. Banerji, J.

I agree.