BHAIRON PRASAD CHAURASIYA Vs. TARA DEVI

JUDGEMENT

(1.) The question which falls for determination in this appeal is whether it is legally permissible to attach and sell an agreement to purchase an immovable property in execution of a decree A Division Bench of this Court had occasion to consider this precise question in the case of Prem Narain Kapoor v. Sudh-risht Narain Anad reported in 1970 All LJ 721. The Division Bench considered the question in depth and answered it in the affirmative. However, when this execution appeal came up for hearing before a learned single Judge, he felt that the above decision needed reconsideration in view of certain observations made by the Supreme Court in the case of Swami Motor Transports (P.) Ltd. v. Sri Sankara-swamigal Mutt reported in AIR 1963 SC 864. In the opinion of the learned single Judge, the observations made by the Supreme Court in the above case rendered the decision of this Court in the case of Prem Narain Kapoor v. S. N. Anad (supra) of doubtful validity. On a reference made by the learned single Judge, the case had been placed before us.

(2.) We may now briefly set out the facts which are relevant for the determination of the controversy.

(3.) The appellant held a money decree against the judgment-debtor respondents. The appellant and the judgment-debtor-respondents had also entered into an agreement on 18-9-1967 whereby the appellant had agreed to sell a house to the judgment-debtor-respondents. The judgment-debtors had instituted a Suit No. 37 of 1974 against the appellant for specific performance of the contract to sell the house. In execution of the decree held by the appellant, he applied for attachment and sale of the aforesaid agreement dated 18-9-1967, which had been filed by the judgment-debtors in their suit for specific performance of the contract The judgment-debtor-respondents filed an objection under Section 47 of the Code of Civil Procedure and asserted that the agreement in question was not liable to attachment and sale in execution of the decree, the execution being prohibited by the provisions of Section 60 (m) of the Code of Civil Procedure.