DADULAL HANUMANLALA Vs. DEO KUNWAR BAI

JUDGEMENT

(1.) THIS is an appeal by the decree-holder against the order of the 2nd Additional district Judge, Durg, setting aside the order of the executing Court dated 19-71956 ordering delivery of possession of suit lands to tne decree-holder.

(2.) BRIEFLY stated the facts giving rise to this appeal are these. Plaintiff, Dadulal, had filed a suit for specific performance of contract against one Mantrial (defendant No. 1), who had contracted to transfer the suit lands to the plaintiff by a contract dated 9-11-1946 (Ex. P-1) but instead of transferring the land to him he transferred the same to Smt. Deokuwarbai and Shantilal (defendants 2 and 3 ). These defendants were, therefore, joined as purchasers of the land subsequent to the contract in favour of the plaintiff and, therefore, bound by it. The suit was decreed and the decree was maintained in second appeal also before the High court. In pursuance of the decree all the 3 judgment-debtors (defendants) were called upon to execute a sale-deed but having failed to do so the Court executed the necessary sale-deed in favour of the plain-tiff-decree-holder. Thereafter the plaintiff-decree-holder applied to the executing Court for being placed in possession of the property conveyed. The claim for being placed in possession was resisted by the judgment-debtors (defendants 2 and 3 only) on the ground that the decree did not grant the relief of possession and hence the executing Court had no jurisdiction to order delivery of possession. it was contended that the only remedy the decree-holder tad was to file a suit for possession. The executing court negatived the contentions of the judgment-debtors and decided to proceed with delivery of possession of the property. The judgment-debtors challenged this order in appeal where they succeeded and the order of the lower Court was set aside. It was held by the lower appellate Court that the decree had not granted the relief of possession and, therefore, the executing Court had no jurisdiction to order delivery of possession to the decree-holder in execution proceedings. Hence this second appeal. '

(3.) IN my view the decision of the lower appellate Court is manifestly erroneous and is based on mis-interpretation of the decree in suit as also on the erroneous view of the law on the subject.