CHAPALA DEVI Vs. RAKHAL CHANDRA SEN GUPTA

JUDGEMENT

(1.) This appeal is brought on behalf of one of the judgment-debtors, namely, defendant No. 7, Shrimati Chapala Bevi, against the order of the 3rd Additional Subordinate Judge of Patna, dated the 2nd June, 1961, dismissing an objection filed by the appellant in Execution Case No. 23 of 1958.

(2.) On behalf of the appellant it was submitted by learned counsel in the first place that the form of the decree given in Title Suit No. 23/26 of 1956, which was the subject-matter of the execution case, was not in accor-trance with the form recommended by the Supreme Court in Durga Prasad v. Deep Chand, AIR 1954 SC 75. In the present case the decree obtained by the plaintiff decree-holder was that "he should deposit the consideration money of the two safe deeds immediately 2nd defendants 2 (a) to 2 (k), the heirs of defendant No. 2, will execute the sale deed in his favour". It was further ordered that the money will be withdrawn by defendant no. 7 who had already paid it to defendant No. 2, and in case of default the sale deed would be executed in plaintiff's favour through the Court. The argument put forward on behalf of the appellant is that the proper form of the decree in such a case is to direct specific perfotmance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass in the title which resided in him to the prior transferee. It was pointed out by the Supreme Court in that case that the subsequent transferee does not join in any special covenants made between the prior transferee and his vendor, and all he does is to pass on his title to the prior transferee. It was argued on behalf of the appellant that the decree should have been made by the court in the form recommended by the Supreme Court in this case and if that form was not adopted the decree could not be executed. We do not think there is any substance in the argument. It is true that the proper form of the decree "is that pointed out by the Supreme Court in AIR 1954 SC 75, but merely because that form is not adopted, it is not right to suggest that the decree obtained by the plaintiff decree-holder in the present case for specific performance of the contract cannot be executed. In the case referred to above, the Supreme Court indeed pointed out that the practice of the courts in India has not been uniform and there are three distinct lines of thought in the decisions of the various High Courts. According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone; the second point of view is that both the vendor and the vendee should join; while the third point of view is to limit execution of the conveyance to the subsequent purchaser alone. In our opinion there is no substance in the objection made on behalf of the appellant and the decree obtained by the decree-holder for specific performance in this case cannot be held to be unexecutable merely because the proper form recommended in the Supreme Court decision referred to above has not been followed.

(3.) It was next submitted on behalf of the appellant that the actual decree made in Title Suit No. 23/26 of 1956 by the 2nd Additional Subordinate Judge of Patna is vague and it is, therefore, not executable. It is true that the decree made by the 2nd Additional Subordinate Judge in the title suit does not incorporate all the details of the sale deed to be executed by defendants 2 (a) to 2(k) in favour of the plaintiff. But it is well established that in a case of this description the decree has got to be-read along with the judgment which makes it clear that the plaintiff should deposit the consideration money of the two sale deeds and thereupon defendants 2(a) to 2(k), the heirs of defendant No. 2, will execute the sale deed in his favour. The further direction is that the money would be withdrawn by defendant No. 7, who has already paid it to defendant No. 2, and in case of default the sale deed will be executed in plaintiff's favour through the court. If the decree is vague it is the dirty of the executing court to look to the judgment of the suit. The decree has got to be read along with the judgment for finding out what reliefs have teen granted to the plaintiff and to what extent. We, therefore, reject the argument of learned counsel for the appellant on this point.