ANDY THANKAPPAN Vs. RAGHAVA PANICKER KUMARA PANICKER

JUDGEMENT

(1.) The same question of law arises for consideration in both these second appeals and they have been placed before a Division Bench by a learned Judge of this Court as he was of the view that there were conflicting decisions of different High Courts on the question at issue.

(2.) The question of law that arises for consideration is whether in execution of a decree for specific performance arising on a contract for sale, delivery of property can be ordered by the execution court. In the two appeals before us, the decree for specific performance merely directed the defendant to execute a sale deed in favour of the plaintiff, failing which the court ' was to execute the deed. There is no specific direction in the decree that delivery of the property be given to the plaintiff. The question is whether in execution of such a decree, it is open to the court to order delivery of the property. The first appellate court in both the cases ordered delivery holding that the executing court is entitled to give possession of the property as the relief of possession is inherent in a decree for specific performance of a contract for sale. The matter came up for consideration before a learned Judge of this court in Second Appeal No. 1354 of 1963, and following the decision in Atal Behary Acharya v. Baroda Prasad Banerji (AIR 1931 Patna 179), it was held that incidental to the relief to which a plaintiff was entitled in a decree for specific performance arising on a contract for sale, the court had a right to grant possession of the property. The Patna decision has specifically held that a contract for sale includes not only the execution of the necessary document but also putting the vendee in possession of the property; and, therefore, even if there is an omission in the plaint or in the decree about granting possession, the executing court is not debarred from granting the plaintiff the relief of recovery of the property.

(3.) On behalf of the appellant in Second Appeal No. 1236 of 1968, his learned counsel Mr. T. L. Viswanatha Iyer brought to our notice certain decisions to which we shall presently refer; where it has been held that a second suit for possession will not be barred by O.2 R.2 or S.47 of the Civil Procedure Code where a decree for specific performance arising out of a contract for sale has already been passed. His contention is that the implication of these decisions is that the decree for specific performance did not necessarily take within its ambit the relief of possession and therefore it has to be taken that unless there is a specific prayer for possession and a decree for that relief, such a relief cannot be granted by the court. In Krishnammal v. Soundararaja Aiyar (ILR 38 Mad. 698) a plaintiff had obtained in a previous suit a decree against the defendants for specific performance of an agreement to sell certain immovable property and, in execution of that decree, he had got a sale deed in his favour. He filed another suit for recovery of possession of the property and was resisted by the defendants with the plea that the second suit was barred under O.2 R.2 of the Civil Procedure Code. This plea was overruled by a Division Bench of the Madras High Court. In that decision, an earlier Division Bench ruling of the Madras High Court in Narayana Kavirayan v. Kandaswami Goundan (ILR 22 Mad. 24) was referred to, where a different view appears to have been taken. The learned Judges refused to follow that decision, and, relying on S.55(1)(f) of the Transfer of Property Act, came to the conclusion that on the execution of the sale deed a right to possession accrued in favour of the vendee and a suit for possession was maintainable on the strength of the sale deed.