SUBODH KUMAR BANERJEE Vs. HIRAMONI DASI

JUDGEMENT

(1.) The appellant before us was one of the judgment-debtors. The appeal arises out of an application under Section 47, Civil P. C., filed by the appellant. The suit out of which the application under Section 47, Civil P. C., arose was a suit for specific performance of a contract. There were several defendants of whom the judgment-debtor was one. The judgment-debtor' was the transferee from the original vendor who was also made one of the defendants in the suit. The appellant had purchased the said property with knowledge of the agreement for sale made with the purchaser. In the plaint which was filed one of the prayers was that the contract for sale be specifically performed. The suit was decreed by the lower Court and the opening words of the decree were that the suit be decreed with costs. In the subsequent portion of the said decree it was stated that the defendants on getting the payment of the consideration money do execute and register a conveyance in favour of the plaintiff and the plaintiff do deposit in court the balance of the consideration money and that the defendants, do pay the costs of the suit. Having obtained that decree an application was made, in execution thereof, for possession of the property in question by the decree-holder. The execution proceedings were' resisted by the present appellant who, as I have indicated, was one of the judgment-debtors and he made an application under Section 47, Civil P. C. The contention raised before the trial Court by the appellant was that the decree which was passed did not entitle the plaintiff to obtain possession of the property; in other words, it was contended that the decree did not direct delivery of possession but only directed the defendants to execute a conveyance and register the same on getting the purchase-money and in the circumstances the plaintiff decree-holder cannot obtain possession of the property -in execution of the said decree. This contention of the appellant was overruled by the lower Court. There was an appeal against that order. That appeal was also dismissed. Both the Courts in coming to the said decision relied upon the case of -- 'Arjun Singh v. Sahu Maharaj Narain', where it was held that the delivery of possession was incidental to the execution of a deed of sale. Against that order the, present appeal has been filed in this Court.

(2.) Unfortunately the respondent did not' appear at the hearing of this appeal and the appeal was going undefended. Having regard to the importance of the question involved in this appeal we thought it proper to request some learned Advocate to argue the matter 'amicus curiae'. We requested Mr. Amarendra Mohan Mitra to help the Court in this matter. He was good enough to lend his assistance and we are obliged to him for the same.

(3.) The learned Advocate for the appellant put forth the same contentions which were urged before the lower Courts. It was contended that the decree did not entitle the' decree-holder to obtain possession in execution of the same; in other words, the decree only directed the judgment-debtors to execute the conveyance and to register the same on receipt of the consideration money, Therefore, the learned Advocate urged, the lower Courts were wrong in allowing this decree to be executed for possession.