S S RAJABATHAR Vs. N A SAYEED

JUDGEMENT

(1.) THE plaintiff is O. S. 767 of 1967 on the file of the court of the District Munsif, kancheepuram, who lost before the courts below, is the appellant herein. The facts are not in controversy. The respondent herein entered into an agreement with one namperumal Naidu under Ex. B-1 dated 4-9-1958 for purchase of the suit property; Namperumal Naidu having failed to execute the sale deed, the respondent instituted O. S. 41 of 1959, on the file of the court of the District munsif, Poonamallee, against the said Namperumal Naidu for specific performance of Ex. B-1 agreement. The suit was dismissed by the learned District Munsif, as evidenced by Ex. A-8, dated 25-3-1960, being a certified copy of the decree therein. The respondent took up the matter in appeal to the learned District Judge, chingleput and the learned District Judge by his judgment and decree dated 8-121960, reversed the conclusion of the learned District Munsif and decreed the suit for specific performance instituted by the respondent. Ex. A-9 is a certified copy of the decree, while Ex. B-2 is a certified copy of the judgment. The matter was taken up further in appeal to this court by the judgment-debtor and that appeal was dismissed. During the interval, Namperumal Naidu sold the suit property to one Santhiappa Naicker, on 24-9-1959 and from the said Santhiappa Naicker, the appellant herein purchased the property under Ex. A-1 dated 4-8-1961. From this, it is clear that on the date when Namperumal Naidu sold the property to santhiappa Naicker on 24-9-1959, O. S. 41 of 1959 was pending and subsequently when the appellant purchased the property from the said Santhiappa naicker on 4-8-1961, A. S. 153 of 1960 had already been disposed of in favour of the respondent herein. It was thereafter that the respondent herein took proceedings for execution of the decree passed in his favour in A. S. 153 of 1960 and by way of execution he prayed for an order for delivery of possession. Such delivery of possession was ordered by the executing court in favour of the respondent and the respondent proceeded to take possession of the property pursuant to the orders of the court. It is at that stage that the appellant herein instituted the present suit for a declaration of his title to the suit property and for an injunction restraining the respondent herein from seeking to dispossess the appellant on the basis of the orders passed by the executing court in execution of the decree passed in A. S. 153 of 1960. The case of the appellant was that he had purchased the suit property from Santhiappa Naicker without knowledge of the suit for specific performance, that consequently he had acquired a valid title to the property and that therefore he was entitled to remain in possession of the same. He also put forward a contention that the executing court had no jurisdiction to order delivery of possession in execution of the decree in A. S. 153 of 1960 since the decree therein did not contain a clause regarding delivery of possession. The courts below held that since Santhiappa Naicker purchased the property during the pendency of the suit instituted by the respondent herein which ultimately ended in his favour, the said sale was affected by the doctrine of lis pendens and that consequently Santhiappa Naicker did not acquire title to the property from santhiappa Naicker. With regard to the contention of the appellant that the executing court had no jurisdiction to direct delivery of possession, since the decree in the suit for specific performance instituted by the respondent did not provide for delivery of possession, the courts below overruled the same on the ground that the direction to deliver possession of the property is incidental to a decree for specific performance and therefore the executing court had jurisdiction to order delivery of possession. It is against these judgments and decrees that the present second appeal has been preferred by the plaintiff in the suit.

(2.) HAVING regard to the admitted fact that by Santhiappa Naicker purchased the property from Namperumal Naidu during the pendency of the suit instituted by the respondent of the suit instituted by the respondent herein for specific performance of the agreement, there can be no dispute whatever that the purchase by santhiappa Naicker first and thereafter by the appellant was affected by the doctrine of lis pendens and consequently as the suit instituted by the respondent was ultimately decreed, the appellant had not acquired any title to the suit property, with the result that the only question that arises for consideration is, whether the appellant is entitled to any injunction restraining the respondent from seeking to take possession of the property pursuant to the orders of the Court in execution of the decree in A. S. 153 of 1960.

(3.) MR. R. Mohan, learned counsel for the appellant, placed reliance on a decision of this court as well as that of Nagpur High Court in support of his contention that in so far as the decree passed in favour of the respondent in A. S. 153 of 1960 did not provide for delivery of possession, the execution court could not go behind that decree and order delivery of possession. The decision of this court relied on is that of Sankaran Nair and Tyabji JJ. in Krishnammal v. Soundararaja Iyer. ILR 38 mad 698 = (AIR 1914 Mad 465 ). In that case, the plaintiff had earlier instituted a suit for specific performance and obtained a decree for specific performance and a sale deed was executed in his favour. Thereafter, he filed an independent suit for recovery of possession. The question for consideration before the Bench was whether the subsequent suit for recovery of possession was barred under Order JJ, rule 2, C. P. C. The learned Judges who decided the case held that such a suit was not barred by Order II, Rule 2, C. P. C. Sankaran Nair J. held that at the time when the plaintiff brought that suit for specific performance, the right to possession was not vested in him; that he would acquire that right only on the execution of the deed of conveyance; and that possession was not merely an incident or subsidiary of the sale deed. The learned Judge also pointed out that in a suit for specific performance the parties to the contract alone need be parties. On the other hand, tyabji J. pointed out