ATAL BEHARY ACHARYA Vs. BARADA PRASAD BANERJI

JUDGEMENT

(1.) Amongst the property in dispute in this case was plot No. 7259 but it is now admitted that the decree-holder is not in possession and he does not lay any claim to it.

(2.) As regards the appeal itself I should be content in this case to uphold the order of Mr. Misra when he decided that he had no jurisdiction to entertain the application under Section 47, Civil P.C. What happened was this: Mr. Mahanty the Munsif who granted a decree in an action for specific performance, subsequently placed the decree-holder in possession of the property, the subject matter of the suit. An application was then made by the judgment-debtor under Section 47, Civil P.C., which came before Mr. Misra the successor of the learned Judge who made the decree and ordered possession, the contention of the judgment-debtor being that Mr. Mahanty had no right to order delivery of possession. As I have already indicated, the learned Munsif, Mr. Misra, came to the conclusion that he had no jurisdiction to entertain such an application under Section 46. It is quite clear that the substance of the application related to the giving possession itself and not the manner in which possession had been given or the property over which possession had bean so given and therefore in effect it was an appeal to the successor of the Munsif who had ordered possession to be given. In my judgment that application was incompetent, but as the substantial question of whether the Court had a right to give possession has been raised, I propose to deal with the matter.

(3.) The argument of the learned advocate on behalf of the respondent is this: that the prayer in the suit did not claim possession and consequently the Court which executed the decree by ordering the execution of the kobala had no right to order possession. Reliance is placed on the authority of Krishnammal v. Manandiar Sundararaja Aiyar, 1914 38 Mad 688, but in so far as that held that an executing Court had no right to deliver possession to the decree-holder in an action for specific performance, that proposition has been expressly dissented from in the case of Deonandan Prasad Singh v. Janki Singh, 1920 5 PatLJ 314. That was a case in which a share in a mouza had been sold in execution to the defendant. Subsequently that sale was set aside and the Court ordered a conveyance by the defendant to the plaintiff. The matter went up to the High Court and subsequently to the Privy Council; but although both the High Court and the Judicial Committee of the Privy Council contented themselves with an order of the execution of the necessary documents no order being granted for possession, yet it was held that the executing Court had a right to order possession of the property, the subject-matter of the suit. The proposition is set out in these words in the judgment of Mullick, J.: