Md. Jamilur Rahman vs Srimati Bachi Devi and Others

S.N. Jha, J.—This civil revision by the judgment-debtor is directed against order dated 1.7.97 rejecting his objection u/s 47 of the Code of Civil Procedure.

The decree-holder-opposite party filed Title Suit No. 184 of 1993 against the Petitioner on 13.10.93 for decree of specific performance on the basis of agreement dated 10.6.91. The suit was decreed exparte on 30.1.97. The decree was put to execution vide Execution Case No. 2 of 1997. The sale deed was drawn up, executed and registered under court''s order. The Petitioner filed objection u/s 47 of the Code seeking dismissal of execution case on the ground that the suit land had been transferred prior to the institution of the suit on 12.5.93 in favour of Bibi Faromalika and Khursid Anwar. The said transferees, however, were not impleaded in the suit. The decree was therefore a nullity, By the impugned order the objection has been rejected.

Mr. Shiv Nandan Roy, learned Counsel for the Petitioner, contended that the purchaser of suit property is a necessary party in the suit for specific performance of contract and in his absence the decree cannot be executed. It was submitted that the suit for specific performance of contract is in essence a suit for possession. The decree-holder however can not obtain possession without the purchaser being party to the decree. The decree is therefore inexecutable. Counsel relied on the observations made in para-graph-20 of the judgment in M/s. Kabari Pvt. Ltd. Vs. Shivnath Shroff and Others, .

Mr. K.D. Chatterji, learned Counsel for the opposite party, submitted that the question raised is academic. He pointed out in this connection that the decree has been passed with respect to 6 kathas of land whereas the sale deed dated 12.5.93 relates to only 1 katha. Secondly, he contended, that the judgment-debtor has no locus standi to object to the execution of the decree on the ground of absence of party. It is open to such party to object to delivery of possession at the time of execution of decree. Lastly, he submitted that the question cannot be allowed to be raised for the first time in execution proceeding, for it involves determination of facts which cannot be done in execution proceeding. In support of the last proposition he placed reliance on Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, .

As a proposition of law, the submission that the suit for specific performance of contract is, in substance, a suit for possession, is well founded. As observed in Kabri Pvt. Ltd. v. Shivnath Shroff (supra), for effective relief in such a suit the transfer of the disputed property in favour of third party is required to be set aside. The transferee therefore is a necessary party. It does not however mean that if the transferee was not impleaded in the suit, the decree becomes a nullity. It means that the decree cannot be executed against such purchaser. In Kabri Pvt. Ltd. v. Shivnath Shroff (supra) the observations were made in the context for amendment of pleadings under Order VI Rule 17 and giving effect to such amendment under Order VI Rule 18 of the Code. Nothing has been stated in the judgment to suggest that the decree itself would be nullity at the instance of the judgment-debtor.

It is significant to mention here that the transferee pendente lite namely Ram Sagar Singh appears to have been impleaded as Defendant in the suit, as is evident from paragraph-2 of the impugned order. The objection as to inexecutability of the decree relates to the sale of 1 katha of land out of 6 kathas made in favour of Bibi Faromalika and Khursid Anwar prior to the institution of the suit. In other words, as regards the question of recovery of possession, on account of the fact that the said transferees are not parties to the decree, the decree may not be executed against them, but so far as the remaining portion of the suit land is concerned, the decree cannot be said to be inexecutable. It is now settled by virtue of the recent decisions of the Supreme Court in Bhanwar Lal Vs. Satyanarain and another, ; Babulal Vs. Raj Kumar and Others, and; Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, , that a third party is entitled to resist delivery of possession and on such resistance being made, his claim is to be considered, even before the stage of dispossession under Order XXI Rule 97 of the Code. The case of Babu Lai v. Raj Kumar (supra) was, as a matter of fact, a case arising out of a suit for specific performance of contract. The Supreme Court held that non-party to the decree, in possession of the property is entitled to have his right, title and interest in the property determined under the said rule. Thus, it is open to Bibi Faromalika and Khursid Anwar to resist delivery of possession in execution of the decree. The judgment-debtor-Petitioner cannot be permitted to espouse their cause by way of objection u/s 47 of the Code. In the above premises, I uphold the submissions of Mr. K.D. Chatterji.

In the result, I do not find any merit in this Civil Revision, which is accordingly dismissed but without any order as to cost.