GOVINDA CHANDRA GHOSE Vs. PROVABATI GHOSE

JUDGEMENT

(1.) The appellant before me was the sole judgment debtor in the executing court. Respondent Srimati Provabati Ghose filed an application for execution of a decree passed in a suit for specific performance of a contract of re-conveyance of some immoveable property on the strength of a purchase from some Mahomedan decree holders, one of whom, namely, Sajita Bibi was admittedly a minor. The interest of Sajita Bibi in the decree purports to have been conveyed to the respondent by her mother and 'de facto' guardian Nurjehan Bibi (vide kobala Ex. A). Appellant Gobinda Chandra Ghose took several objections to the execution of the decree. The objection material for the purpose of this appeal was that under the kobala executed by the original decree-holders an interest in immovable property was transferred and as the 'de lacto' guardian had no authority to transfer the minor's interest, the share of the minor in the decree was not acquired by the respondent. This objection was overruled by the courts below along with all other objections taken by the judgment-debtor. He has therefore preferred this Second Appeal in this Court.

(2.) The only question which arises for decision in this appeal is whether a decree passed in a suit for specific performance of a contract for sale of immoveable property creates any interest in the property. If the answer to this question be in the affirmative, then there is no doubt that the appeal must be allowed and the execution of the decree should be refused so far as the share of the original minor decree-holder Sajita Bibi in the decree is concerned. After hearing the learned Advocates for both parties I find it difficult to accept the contention of Mr. Roy who appeared on behalf of the judgment-debtor appellant that when a decree is passed in a suit for specific performance of a contract for sale of immovable property an interest in the property is created in favour of the decree-holder. Section 54, Transfer of Property Act lays down that a contract for sale of immoveable property does not by itself create any interest in such property. If that be so, it is difficult to see how a decree passed on the basis of such a contract creates that interest. The decree merely superadds the sanction of the Court to the contract entered into by the parties and makes it enforceable through the medium of the Court. "Immoveable property" has thus been defined in Clause 26 of Section 3, General Clauses Act, 1897. "Immoveable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". Having regard to this definition of immoveable property and also to the nature of the decree passed in a suit for specific performance of a contract for sale of immoveable property, I fail to see how a decree of the above description can create any interest in immoveable property.

(3.) The point which has arisen for decision in this appeal does not seem to be directly covered by any precedent. Mr. Bose appearing on behalf of the respondent, however, drew my attention to some cases of this Court in which it has been held that an assignment of a mortgage decree comprising immoveable property does not create any interest in immovable property and should be regarded as an assignment of moveable property (vide the cases of -- 'Gous Mahomed v. Khawas All Khan', 23 Cal 450 (A); -- 'Baijnath Lohea v. Binoyendra Nath Palit', 6 Cal WN 5 (B); and -- 'Ram Ratan v. Jogesh Chandra', 12 Cal WN 625 (C). Now, a mortgage of immoveable property certainly creates an interest in favour of the mortgagee in such property. But if an assignment of a decree passed on such a mortgage does not constitute an assignment of immoveable property, there is all the greater reason why a decree passed on an agreement for sale of immoveable property should not be regarded as an assignment of immoveable property because such an agreement, unlike a mortgage, does not, by itself, create any interest in immoveable property.