KHORSHED ALI BEPARI Vs. PROBHAT CHANDRA DAS

JUDGEMENT

(1.) This appeal has arisen out of an application under Section 47, Civil P.C., raising objections to the execution of a decree for specific performance of a contract for sale, passed by the Munsif, Second Court Munshigunj, in the District of Dacca, on 11 September 1930. The operative part of the decree was in these terms: The suit be decreed ex parte with costs. The plaintiffs right to have the contract for sale of the plaint schedule properties for Rs. 801 specifically enforced is hereby declared. The defendant is hereby directed to execute a kobala in favour of plaintiff 2, for the sale of the properties by accepting the balance of the price i.e., Rs. 651 from the plaintiffs within a month. In default the Court will execute and register a kobala of sale of the plaint schedule properties on behalf of the defendant in execution of the decree on the plaintiff's depositing into Court the balance of the purchase money and requisite stamp and registration fee.

(2.) There was no payment of the amount of Rs. 651, nor was there any execution of the kobala within the time specified fin the decree. The plaintiffs however applied on 24 June 1931, for execution of the decree, praying for execution and registration of a kobala in the manner provided by the decree on default by parties in the matter of payment and execution and registration within the time mentioned in the decree. The main ground of objection to the execution applied for by the plaintiffs, was that there was default in the matter of the plaintiffs carrying out the direction contained in the decree, and the decree could not therefore be allowed to be executed in the manner in which the plaintiffs prayed for execution of the same. The objection so raised was overruled by the Munsif. On appeal, the learned District Judge of Dacca came to the decision that the real question for determination in the case-whether the plaintiffs offered the balance of the purchase money within the time allowed by the decree-had not been dealt with by the Munsif, and the learned Judge therefore remanded the case to the Munsif, after setting aside the order dismissing the application under Section 47, Civil P.C. The plaintiffs appealed to this Court, against the order of remand passed by the learned District Judge. At the hearing of the appeal, before us, a preliminary objection as to the competency of the appeal was raised on behalf of the respondent. It was urged that no appeal lay to this Court under Rule 1, Order 43, Civil P.C., which was the only provision of law for an appeal from an order of remand, inasmuch as in making the order, the lower appellate Court was purporting to act under Order 41, Rule 25. and not under Order 41, Rule 23 of the Code. The contention may be accepted as sound: see decision of this Court in the case of Jagathari Saha V/s. Medin(SIC) Mohan Burdhan ; but it is open to us to treat the memorandum of appeal to this Court, as an application for revision and give the plaintiffs decree-holders the relief they are entitled to. We proceed therefore to consider the merits of the case before us.

(3.) Regard being had to the second part of the decree sought to be executed, the plaintiffs were entitled to have specific performance of contract for sale in the manner indicated. On the plaintiffs depositing the amount of Rs. 651, the balance of the purchase money and requisite stamp and registration fee, the Court is to execute and register a kobala of sale, and no question of default, so far as the direction contained in the first part of the decree was concerned, could arise for consideration. The decree as it stands may be considered to be defective and faulty, so far as the second part of it is concerned but that is not a matter which could be taken into account by the Court executing the decree in a proceeding for execution of the decree. The plaintiffs decree-holders, upon the terms of the decree as it stands, had the right to deposit the balance of the purchase money and requisite stamp and registration fee, and get a conveyance executed and registered through the agency of the Court. The only limitation imposed upon the decree-holders in this behalf was the one under the law, prescribing the time within which the decree must be put into execution. The steps necessary for the purpose of executing the decree and getting the conveyance executed, having been taken within the period of limitation provided for execution of a decree, there is no bar under the law, or under the terms of the decree sought to be executed, to the direction contained in the second part of the decree being given effect to.