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Gauhati High Court · body

1970 DIGILAW 17 (GAU)

Narendra Chandra Saha v. Matangini Roy

1970-02-28

R.S.BINDRA

body1970
Shri S. K. Kar has failed to con­vince me that a case has been made out for admitting this revision petition against the appellate order dated 18-12-1969 of the Dis­trict Judge, Tripura. 2. The legal point raised in the petition is that since the trial court's decree did not provide for delivery of possession of the pro­perty in dispute, apart from specific perform­ance of the agreement of sale respecting that property, it was not open to the decree-holder to seek the relief of posses­sion in execution of the said decree. The District Judge has held, on the authority of AIR 1954 All 643 , Bal­mukand v. Veer Chand, that where a decree for specific performance of a contract of sale is silent as to the relief of delivery of possession even though such relief was claimed in the suit, the executing court is still compe­tent to deliver the possession. It was held further in the authority cited that it is not necessary in a suit for specific performance either to separately claim possession or for the court to pass a decree for possession since a decree for specific performance of a contract to sell includes everything inci­dental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being governed by Section 55 of the Trans­fer of Property Act. Clause (f) of sub-section (1) of Sec­tion 55 of that Act provides that the seller is bound to give on being so required, the buyer, or such person as the latter directs, such possession of the pro­perty as its nature admits. It follows that if the suit for specific performance of a contract of sale is decreed, the seller after the sale deed has been executed by or on his behalf in favour of the purchaser, and the latter can demand delivery of possession of the pro­perty from him. The facts of the Allahabad case, it may be mentioned, are similar on all fours with those of the case in hand. The particular point of similarity which requires emphasis is that in the Allahabad case, as here the plaintiff had claimed a decree for possession besides a decree for specific en­forcement of the contract and the court had granted only a decree for specific perform­ance. The particular point of similarity which requires emphasis is that in the Allahabad case, as here the plaintiff had claimed a decree for possession besides a decree for specific en­forcement of the contract and the court had granted only a decree for specific perform­ance. Despite the fact that the trial court had not decreed the claim for possession, the Allahabad High Court held that the plaintiff vendee was entitled to get posses­sion in execution of the decree awarded to him. Shri Kar was unable to point any dis­tinction between the facts of the two cases. 3. I may appropriately invite reference to another two decisions, one of Patna High Court, Janardan Kishore v. Girdhari Lai, AIR 1957 Pat 701 , and the other of Calcutta High Court. Subodh Kumar v. Hiramoni art Dasi, AIR 1955 Cal 267 . In the latter case, it was observed that the right to recover possession springs out of the contract which is being specifically enforced and not as a result of the execution and completion of the conveyance, and as such the judgment-debtor is bound to deliver possession to the decree-holder. The Patna High Court held that the relief of possession is inherent in a relief for specific performance of contract for lease, and the court executing a decree for specific performance of such a contract can grant pos­session of the property to the decree-holder even though the decree did not provide for delivery of possession. 4. Shri Kar was unable to cite any other authority to the contrary. I think the com­bined reading of Clause (f) of Section 55 (1) of the Transfer of Property Act and O. XXI, R. 32, Civil Procedure Code leaves no scope for doubt on the point that on the basis of a mere decree for specific performance of contract for sale of property the decree-holder is well within his rights to approach the executing court for securing possession of that property. 5. Anyway, since the orders of the two courts below have the effect of doing sub­stantial justice between the parties, I see no justification for interference in revision. The power of revision is intended to be exer­cised with a view to subserve and not to defeat the ends of justice. 6. Consequently, I reject the revision petition in limine. The stay application falls through ipso facto. Announced. Petition dismissed.