D. K. Kapw ( 1 ) THIS appeal is concerned with some questions whih have arisen during execution proceedings relating to a decree for specific performance of an agreement to sell agricultural land situated in village Saboli, Shahdara, Delhi. The contract was between Ram Pershad, decree holder (now respondent No. l)and Bhu Dev Sharma (respondent No 2 in this appeal) The other parties to the suit were subsequent transferees who were alleged to be bound by that agreement; these parties are the present appellants. The suit was tried by Shri B K. Agnihotri, Subordinate Judge, 1st Class, Delhi who decreed the suit on 17th Aug. , 1961. The decree as passed directed the specific performance of the agreement in favour of the plaintiff and also ordered the cancellation of the sale in favour of the other defendants (subsequent transferees who are the present appellants ). ( 2 ) TWO seperate appeals were filed in the Circuit Bench of the Punjab High Court being R F. A. No. 142 D/61 and R. F. A. No. 146-D/61. These appeals were dismissed on 28th Oct. , 1971, by a Division Bench of this Court (Andley and Jagjit Singh JJ. ). Then execution proceedings were taken out by the decree-holder. The first defendant was ready to execute sale deed in favour of the plaintiff-decree-holder, but the other defedants who were in possession by reason of the sale in their favour raised certain objections regarding the execution. Those objections have been decided in favour of the decree-holder and the aggrieved judgment-debtors have come in appeal to this Court. ( 3 ) THE two points raised by the appellants were (a) that the money payable under the decree as consideration for the sale, amounting to Rs, 10,000. 00 should be paid to them and not to judgment-debtor No. 1 and (b) possession could not be taken away from them as there was no decree for possession against them. Regarding the first point, the executing court held that as the sale deed is to be executed by defendant No. 1 he alone is entitled to get the amount, but the other judgment- debtors can probably have their relief somewhere else. On the second point, it was held that delivery of possession was ancillary to the execution of the sale-deed, and hence possession has to be delivered by the appellants. On the second point, it was held that delivery of possession was ancillary to the execution of the sale-deed, and hence possession has to be delivered by the appellants. Reliance was placed on two judgments delivered by Avadh Behari J. which are reported as Ex-Servicemen Enterprises (N) Ltd. v. Sumey Singh, AIR 1976 Delhi 56 and Ex-Servicemed Enterprises (N) Ltd. v. Sumey Singh AIR 1976 Delhi 18l I have seen those two judgments but find that they do not really cover the point now before the Court. ( 4 ) IN my view, both the questions raised by the appellants are of a formidable nature because it appears to me that there has been a mistake of the trial court when decreeing the suit. The problem is, how to solve the difficulty created by this mistake As it seems, the matter has come before a Division Bench of this Court, but the defect in the decree has not been pointed out and hence without realising it (or so it seems to me) the parties "have let the decree stand as it is. It is now necessary to focus attention on the defects before trying to find out the way in which the same can be remedied. ( 5 ) WHEN the suit was decreed by the trial court, the operative part of the judgment read as follows : "for the reasons recorded above, I pass a decree in favour of the plaintiff, and against the defendants. I declare that the sale in favour of defendants Nos, 2 to 5 of the land in suit is null and void and I hereby cancel it, and I order the defendant No. 1 to execute the sale deed in favour of the plaintiff on payment of balance consideration of Rupees 10,000. 00, within two months from to-day, i. e. on or before 17th Oct. , 1961. If defendant No. 1, fails to execte the sale deed on the due date in favour of the plaintiff, then the court shall execute the same. The defendant No. 1 shall bear the costs of the suit. "- It is noticeable that the court has held the sale in favour of defendants Nos. 2 to 5 to be void and has, 395 therefore, cancelled. it, and thereafter the court has directed the first defendant to execute the sale-deed, A time limit for paying Rs. 10-000. The defendant No. 1 shall bear the costs of the suit. "- It is noticeable that the court has held the sale in favour of defendants Nos. 2 to 5 to be void and has, 395 therefore, cancelled. it, and thereafter the court has directed the first defendant to execute the sale-deed, A time limit for paying Rs. 10-000. 00 has also been fixed, but there is no mention in the judgment as to who is to be paid the sum of Rs. 10,000. 00. The decree drawn up in this case (which is the one being executed) is in similar terms and the operative part reads as follows :- "this suit coming on this day for final disposal before me in the presence of Shri Shiv Shankar Shukl and Shri Amar Nath Monga, Advocates, Delhi for the plaintiff Shri Dharam Pal Bhatia Advocate, Delhi, for the defendant. It is ordered that the plaintiff is hereby granted a decree against the defendants declaring that the sale in favour of defendant 2 to 5 of the land in suit is null and void and the same is hereby cancelled. It is, further ordered that the defendant No. 1 shall execute the sale deed in favour of the plaintiff on the payment of balance consideration of Rs. i0,000. 00 within two months from 17. 8. 1961, i. e. on or before 17. 10. 1961. It is further ordered that if defendant No. 1 fails to execute the sale deed on the due date in favour of the plaintiff, then the same shall be executable through court, and it is further ordered that the defendant No. 1 do also pay Rs. 1749-25np. the costs of the suit to the plaintiff". The contention of the learned counsel for the appellants on the point as to who has to be paid the sum of Rs. 10,000. 00 is a most interesting one It is submitted that the sale is based on an agreement to sell as a result of which the plaintiff paid Rs. 2,000. 00 to defendant No. 1 and he had to pay the balance sum of Rs. 10,000. 00 to defendant No. 1 on execution of the sale-deed. Therefore, under that contract the first defendant had to get Rs. 2,000. 00 to defendant No. 1 and he had to pay the balance sum of Rs. 10,000. 00 to defendant No. 1 on execution of the sale-deed. Therefore, under that contract the first defendant had to get Rs. 12,000/ For certain reasons, the agreement to sell did not go through, and so acting in the belief that he could sell to someone else, the first defendant sold the property to defedents 2 to 5, (now judgment-debtors 2 to 5) for Rs. 17. 000. 00 This sale was apparently executed on 29th Oct. 1959, and registered on 30th Oct. 1959. In terms of this sale, the first defendant got Rs. 17,000. 00. If the order of the court is interpreted as allowing the first defendant to get the sum of Rupees 10,000. 00 also, it will mean that defendant No. 1 will have got Rs. 12,000. 00 from the plaintiff and Rs. 17,000. 00 from the other subsequent party which is now judgment-debtors Nos. 2 to 5 (the present appellants ). In other words, the consequences of this interpretation will be that the first judgment-debtor wit! have received consideration for the sale both from the plaintiff-decree-holder as well as the judgment-debtors by the subsequent sale. It is urged that this interpretation is an impossible situation which cannot be allowed in law. I fully agree with this view that the result of interpreting the decree to mean that the consideration has to be paid to the first defendant (Judgment- debtor No. 1) will mean that he will have got consideration twice-fold for the same land. At the same time, it is contended by learned counsel for the appellants that the decree is silent regarding possession and no decree for possession has been passed. He says that in execution of the decree, judgment-debtors Nos. 2 to 5 cannot be dispossessed from the land without an express conclusion to that effect in the judgment or an express decree against them in this behalf aspart of the decree actually drawn up. As it happens, the decree passed against defendants Nos. 2 to 5 is a decree cancelling their sale-deed. The sale-deed consists of two parts, namely, the transfer of the land and the payment of consideration by these defendants. It would follow that somehow or the other the amount of Rs. 17,000. As it happens, the decree passed against defendants Nos. 2 to 5 is a decree cancelling their sale-deed. The sale-deed consists of two parts, namely, the transfer of the land and the payment of consideration by these defendants. It would follow that somehow or the other the amount of Rs. 17,000. 00 has also to be returned to this party before the cancellation can be deemed to be effective All these points raise a most interesting and difficult problem in law which has somehow. to be solved in these proceedings or the decree has to be held to be inexecutable which is a conclusion which I would not like to reach unless I am absolutely compelled. ( 6 ) IT is now necessary to fo cus attention on the mistake made by the trial court when passing the judgment on 17th Aug. 1961. It is well understood that in a suit for specific performance based on a contract, any subsequent transferee who has notice is also bound by the terms of the contract and a decree for specific performance has also to be passed against such a transferee. The present suit was decided when the Specific Relief Act, 1877 was in force and the precise Section dealing with this case is S. 27 which is (- - -) ( 7 ) THE persons who are bound by the contract include persons who have obtained a subsequent title. This is provided in sub-cl. (b) of the above Section. The normal decree which is to be passed in such esses has been the subject-matter of many reported decisions. I refer for reference to Kafilladdi v. Samiraddin AIR 1931 Cal 67, Gaurishankar v. Ibrahim Ali AIR 1929 Nag 298 and Mathm Thommen v. Thomas Mathew AIR 1952 Trav-Co. 199 and other similar cases. These judgment show that the proper decree to be drawn up in such cases is that the subseqent transferee must be ordered to execute the sale-deed so as to bring about the transfer to the decree-holder. In my view, the trial court in this case has blundered very badly by directing only the first defendant to execute the sale-deed and the cancellation of the previous sale in favour of judgment-debtors 2 to 5 is not a procedure appearing in the Specifi c Rtlief Act- At the same time. In my view, the trial court in this case has blundered very badly by directing only the first defendant to execute the sale-deed and the cancellation of the previous sale in favour of judgment-debtors 2 to 5 is not a procedure appearing in the Specifi c Rtlief Act- At the same time. I must also say that there was no prayer for cancellation of that sale in the suit The plaintiff had sued for specific performance of the contract, he had joined the subsequent purchasers, who he claimed in law were equally bound with the original contracting party as they had notice, and thus were bound by the agreement to sell. This is so provided in S. 27 (b) of the Specific Relief Act, 1877, and on reading the judgment in the suit I find that though the legal position was clearly understood by the trial Judge, it appears that on account of inexperience the Subordinate Judge, was not able to appreciate that he had to pass a decree for specific performance against all the defendants and not a decree cancelling the sale in favour of the subsequent purchasers (judgment-debtors Nos 2 to 5, the present appellants ). He should also have directed the transferee-judgment-debtors to execute the sale-deed and these judgment-debtors also have been paid the consideration for the sale as they were then the owners of the property on account of the subsequent transfer to them. By some very obvious error, the trial court was of the view that he should cancel the sale-deed in favour of the present appellants and pass the decree for specific performance against the previous owner. However, the decree is client as to how the decree for cancellation of the sale is to be carried into effect. There ought to have been a direction that defendants Nos. 2 to 5 should give up possession and should be paid back the consideration of Rs. 17,000. 00 already paid by them or should be paid such other sum as could have been worked out by the Court. In fact, the decree merely ordered the cancellation without directing the reversal of the obligations incuned by the contracting parties which are ordinarily, delivery of possession and payment of consideration. 17,000. 00 already paid by them or should be paid such other sum as could have been worked out by the Court. In fact, the decree merely ordered the cancellation without directing the reversal of the obligations incuned by the contracting parties which are ordinarily, delivery of possession and payment of consideration. Having located this very serious blunder, which has so far passed undetected, I am now to find out a way which should restore to the parties the true consequences and effect of getting the suit decreed. I find myself unable to rectify the decree as nobody has appealed against the decision of the High Court which has merely affirmed the decree, and hence, the alternative is either to say that the decree cannot be executed, which would mean denying the plaintiff the the fruits of the litigation, or to find a way in which the present appellants can be made to give up possession and also be refunded the consideration paid by them. (Rs. 17. 000. 00 ). ( 8 ) TURNING now to the relief of possession, it has been held in a number of reported cases delivered under thesspecific Relief Act, 1877, that a decree for specific performance includes the grant of delivery of possession which is merely ancillary to the decree for specific performance. Relevant cases are, Arjun Singh v. Sahu Maharaj AIR 1950 All 415 , Kartik Chandra Pal v. Dibakar ATR 1952 Cal 362, Pt. Balmukand v. Veer Chand, AIR 1954 All ,643, Janardan Kishore Lal v. Girdhari Lal Sunda, AIR 1957 Pat 701 , and Dadulal v. Smt. Deo Kunwar AIR 1963 Madh Pra 86. In all these cases there is adequate discussion to the effect that when there is a decree for specific performance, the relief of possession is to be automatically granted. These judgments I may indicate here are based on the Specific Relief Act, 1877. The position has been altered by Sec. 22 of the Specific Relief Act, 1963, wherein power has been given to the plaintiff to ask for possession, partition and separate possession in addition to specific performance. Therefore, the present legal position is that there may be a decree for specific performance with possession or without possession, but the previous legal situation, 399 was that where specific performance was decreed then possession had to be delivered. Therefore, the present legal position is that there may be a decree for specific performance with possession or without possession, but the previous legal situation, 399 was that where specific performance was decreed then possession had to be delivered. As it happens, the decree for specific performance has been passed in this case against defendant No. 1 and not against the other defendants. This means that the decree- holder can obtain possession from defendant No. 1 but as defendant No. 1 is not in possession he is in no position to deliver possession. The problem is, whether the decree for specific performance can be executed so as to get possession from defendants 2 to 5 against whom no decree for specific performance was passed ? If the decree had been rightly framed under S. 27 (b) of the the Specific Relief Act. 1877, then no doubt these defendants could also be dispossessed by a mere decree for specific performance on the basis of the aforementioned judgments. What is to happen when there is no decree for specific performance against the subsequent transferees ? Obviously, in such a case the decree for specific performance cannot be executed against persons who have not suffered the same. There being no decree for specific performance against defendant 2 to 5, there can be no execution against them so as to specifically perform the agreement, and therefore, possession cannot be taken away from these defendants on the basis of the decree for specific performance. This is my conclusion regarding the non-executability of the decree for specific performance. ( 9 ) HOWEVER, the decree provides for execution of a sale-deed by defendant No. 1, who is ready to execute the same. Suppose such a sale-deed is executed, then does the decree- holder have to file a subsequent suit against the" appellants or can ha get relief in the present proceedings ? ( 10 ) I now come to examine whether the other part of the decree, namely, the cancellation of the sale-deed in favour of judgment- debtors 2 to 5 can result in any relief being granted to the plaintiff-decree-holder. In other words, the judgement-debtor No. 1 has to get Rs. 12,000. 00from the decree holder and nothing more. He has to restore -Rs. l7,000. 00to defendants 2 to 5, Part of this order can be implemented by paying the sum of Rs. 10,000. In other words, the judgement-debtor No. 1 has to get Rs. 12,000. 00from the decree holder and nothing more. He has to restore -Rs. l7,000. 00to defendants 2 to 5, Part of this order can be implemented by paying the sum of Rs. 10,000. 00which is in Court to judgment debtors 2 to 5. For the balance sum they can take out execution against the first judgment-debtor. The final step is the delivery of possession to the decree-holder. On the execution of the sale-deed, the decree-holder is entitled to get an order for possession which also be binding against judgement-debtors 2 to 5. These judgment-debtors will be entitled to withdraw the sum of Rs. 10,000. 00and for the balance sum of Rs. 7,000. 00they may take out execution against judgment-debtor No. 1. Till the sum of Rs. 17,000. 00 is paid 10 the appellants (judgment-debtors 2 to 5) they are entitled to retain possession. The result of this discussion would be that this appeal has to succeed on both the grounds urged by the appellants but, in spite of this success, the decree in favour of the first respondent is not held to be inexecutable. As regards the sum of Rupees 10,000. 00which is now in Court, though it has been withdrawn on furnishing security by respondent No. 2, the said sum has to be paid to the appellants as part of the refund of Rupees 17,000. 00which has been ordered as a result of the cancellation of the sale in their favour. Theexecuting court will now get back this sun and direct it to be paid to the appellants. In order to get possession, the decree-holder will have to arrange Rs. 7,000. 00more as paid to the appellants as they cannot be deprived of their possession till they have been paid the sum of Rs. 17,000. 00. This sumofrs. 7,000. 00has to. be paid by Shri Ban Dev Sharma respondent No. 2 as he received the same- under the sale which was cancelled. Till such sum is refunded to the appellants, the cancellation of the sale in their favour is not complete. Therefore, execution has to be taken out to get this sum back. As the appellants may not take out execution for this sum and may therefore retain possession of the land, the executing Court may allow the decree-holder to pay this additional sum of Rs. 7. 000. Therefore, execution has to be taken out to get this sum back. As the appellants may not take out execution for this sum and may therefore retain possession of the land, the executing Court may allow the decree-holder to pay this additional sum of Rs. 7. 000. 00 and help the decree holder to get a refund of this amount from the second respondent, Bhu Dev Sharma. These steps will restore all the parties to the correct legal position brought about the decree as actually passed in this suit. Although this appeal has succeedeed, I find the necessity for the same is on account of the fault of the trial court when it decided the suit and, therefore, I leave the parties to bear own costs in this court and also the court below.