HANSRAJ PAL AND MUKHRAJI KUNWAR Vs. DALPAT PAL

JUDGEMENT

(1.) IN this suit the plaintiff obtained a decree for possession of certain immovable property. After recovery of the decree the plaintiff sold a portion of the property to different persons reserving some portion of the property to himself. The respondents applied under Section 232 of the Civil P. C., contending that by the sale deed the decree had been transferred to them to the extent of the property mentioned in the sale deed, and that they were entitled to execute the decree. The Court to which the application was made refused the application. The present respondents appealed, with the result that the decision of the Court of the first instance was reversed, the Court holding that Section 232 did apply under the circumstances and respondents were entitled to execute the decree in the manner they asked, and remanded the case under Section 562 of the Code of Civil Procedure. The decree-holder now appeals against the older of remand. He contends that no appeal lay from the decision of the Court of first instance, the Court having refused to allow the respondents to execute the decree under Section 232. He also contends that under no circumstances could the provisions of Section 232 apply to the transaction between him and the respondents. We will take the second point first, because if this point be decided in favour of the appellant, it becomes quite unnecessary to decide whether or not an appeal lay from the order refusing to allow execution under Section 232. We have considered the sale deed, which is on the record, and we find that it in no way purports to sell or transfer the decree. The only reference to the decree is that the vendor states, after selling the property and having referred to the description of it, "to which my title has been declared by the decree," et cetera. We have to consider whether a sale of the property for possession of which a vendor has obtained a decree necessarily carries with it assignment of decree itself. We certainly think that it does not It might happen that a vendor might get a decree for possession of the property together with an award of a large sum for mesne profits and costs. It could never be contended that if before he executed the decree he sold the property or a portion of it that this sale deed without express words would carry with it the right to the mesne profits and costs. IN the decision of this Court in Ram Sahai V/s. Gaya (1884) I.L.R. 7 All. 107 Mr. Justice Mahmood has further illustrated the difference between a transfer of property and a transfer of a decree. It is the respondents misfortune, if, when obtaining a sale deed of the property, they neglected to provide either that the decree should be assigned to them or that the decree- holder should be bound to execute the decree and put them into possession. We wish to point out that in deciding this appeal in favour of the appellant, we do so on the ground that no application could legally be made to execute the decree under Section 232. We make this remark lest our present decision should prejudice any suit which the respondent may be advised to institute in order to get the benefit of their sale deed. As a result, we must allow the appeal, set aside the order of the lower appellate Court and restore that of the Court of first instance with costs.