MD JAMILUR RAHMAN Vs. SRIMATI BACHI DEVI

JUDGEMENT

(1.) THIS civil revision by the judgment -debtor is directed against order dated 1.7.97 rejecting his objection under Section 47. of the Code of Civil Procedure.

(2.) THE decree -holder -opposite party filed Title Suit No. 184 of 1993. against the petitioner on 13.10.93 for decree of specific performance on the basis of agreement dated 10.6.91. The suit was decreed ex parte on 30.1.97. The decree was put to execution vide Execution Case No. 2 of 1997. The sale deed was drawn up, executed and registered under court's order. The petitioner filed objection under Section 47 of the Code seeking dismissal of execution case on the ground that the suit land had been transferred prior to the institution of the suit on 12.5.93 in favour of Bibi Faromalika and Khursid Anwar. The said transferees, however, were not impleaded in the suit. The decree was therefore a nullity, By the impugned order the objection has been rejected.

(3.) MR . Shiv Nandan Roy, learned counsel for the petitioner, contended that the purchaser of suit property is a necessary party in the suit for specific performance of contract and in his absence the decree cannot be executed. It was submitted that the suit for specific performance of contract is in essence a suit for possession. The decree -holder however can not obtain possession without the purchaser being party to the decree. The decree is therefore inexecutable. Counsel relied on the observations made in paragraph -20 of the judgment in Kabri Pvt. Ltd. vs. Shivnath Shroff, (1996) 1 SCC 690.