JUDGMENT A.K. Shrivastava, J. Feeling aggrieved by the judgment and decree dated 15-11-1994 passed by 1st Additional District Judge, Seoni in Civil Suit No. 3-A of 1992, the plaintiff has preferred this appeal. Sans unnecessary details, the facts lie in a narrow compass that defendant No. 1 Mahadev Prasad is the Bhumiswami of the agricultural land in question. He entered into an agreement with plaintiff on 10-9-1991 and agreed to sell the land in question to plaintiff for a consideration of Rs. 45,390/- and received Rs. 10,011/- as earnest money. It was agreed by the parties that after obtaining the balance sale price the sale-deed shall be executed and in case the defendant fails or avoid to execute the sale deed, the plaintiff would be free to file the appropriate suit to get the sale deed executed. According to the plaintiff, he approached the defendant again and again but he avoided to get the sale deed executed, as a result of which he sent a notice (Ex.P/7) through his counsel which was sent by Registered A.D. post on 9-8-1991. In reply to this notice which was also sent by Registered A.D. Post, the defendant admitted the fact of execution of the agreement and further stated that he is ready to execute the sale-deed after obtaining the balance price. According to the plaintiff, on 20-5-1991 throughout the day he was present in the office of Sub-Registrar along with the balance sale price but the defendant did not turn up. An application was submitted before the Registrar which Ex.P-12 and P-13. Later on, the defendant assured the plaintiff that the sale deed would be executed on 19-8-1991 and as such he went to the office of the Sub-Registrar and remained there for the whole day but the defendant failed and did not come, as a result of which he submitted an application (Ex.P/14) on that day (19-8-1991) before the Sub-Registrar. According to the plaintiff, he is still ready and willing to purchase the land in question. On these grounds, the suit for specific performance of the contract was filed by the appellant. The defendant did not remain present despite having served and, therefore, the Trial Court proceeded ex parte against him. According to the plaintiff, he is still ready and willing to purchase the land in question. On these grounds, the suit for specific performance of the contract was filed by the appellant. The defendant did not remain present despite having served and, therefore, the Trial Court proceeded ex parte against him. The Trial Court recorded the evidence of plaintiff and his witness and came to hold that defendant did execute the document of agreement in favour of plaintiff and plaintiff was ready and willing to perform his part of contract but as the land in question is Jess than 5 acres, therefore, in view of the section 165(7) of the M.P. Land Revenue Code, 1959, no decree of specific performance can be passed and, therefore, the trial Court simply passed a money decree to return the earnest money along with interest by the impugned judgment. Hence, this appeal. In this appeal, an application (I.A. No. 773/95) under Order 41 Rule 27, CPC has been filed by the appellant for taking certain revenue papers on record. No reply to this application has been filed by the respondent. It has been contended by Shri Anshuman Singh, learned counsel appearing for the respondent that upon plaintiffs own showing the suit land is ancestral property and, therefore, the defendant is not the exclusive owner of the suit property and as such no decree of specific performance of contract could be passed if the defendant is not the exclusive Bhumiswami of the land in question. It has been contended by Shri K.N. Agrawal, learned senior counsel assisted by Smt. Hansa Agrawal that the Trial Court though gave finding in favour of the plaintiff but did not pass the decree of specific performance of contract simply on the ground that there is a bar u/s 165(7) of the Code, section 165 of the Code which speaks about the right to transfer reads thus: 165. Rights of transfer.- (1) Subject to the other provisions of this section and the provision of section 168 a Bhumiswami may transfer any interest in his land. Rights of transfer.- (1) Subject to the other provisions of this section and the provision of section 168 a Bhumiswami may transfer any interest in his land. (2) Notwithstanding anything contained in sub-section (1)- (a) xxxxx xxxxx xxxxx (b) xxxxx xxxxx xxxxx (c) xxxxx xxxxx xxxxx (3) xxxxx xxxxx xxxxx (4) xxxxx xxxxx xxxxx (5) xxxxx xxxxx xxxxx (6) xxxxx xxxxx xxxxx (7) Notwithstanding anything contained in sub-section (1) or in any other law for the time being in force- (a) where the area of land comprised in a holding or if there be more than one holding the aggregate area of all holdings of a Bhumiswami is in excess of five acres of irrigated or ten acres of unirrigated land, then only so much area of land in his holding or holdings shall be liable to attachment or sale in execution of any decree or order as is in excess of five acres of irrigated or ten acres of unirrigated land; (b) no land comprised in a holding of a Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) shall be liable to be attached or sold in execution of any decree or order; (c) No receiver shall be appointed to manage the land of a Bhumiswami u/s 51 of the Code of Civil Procedure, 1908 (V of 1908) nor shall any such land vest in the Court or any receiver under the Provincial Insolvency Act, 1920 (V of 1920), contrary to the provisions of clause (a) or clause (b); Provided that nothing in this sub-section shall apply where a charge has been created on the land by a mortgage. On going through the above said provisions, it is clear that there is no bar in passing a decree of specific performance under this section. This clause speaks about the attachment or sale in execution of a decree. Neither the present suit land is being attached or being sold in the execution of the decree and, therefore, sub-section (7) of section 165 is not at all applicable in the present factual scenario. In this context, it would be profitable to rely on the decision of Bhawaniram and others vs. Ghisibai, 1978 RN 418 wherein Justice G.L. Oza as then his Lordship was, in para 4 has laid down the law thus: 4. In this context, it would be profitable to rely on the decision of Bhawaniram and others vs. Ghisibai, 1978 RN 418 wherein Justice G.L. Oza as then his Lordship was, in para 4 has laid down the law thus: 4. As regards objections under sub-clauses (v) and (vii) of section 165 it could not be disputed that these pertain to sales in execution of a decree. Admittedly the present sale does not pertain to sale in execution of a decree but it is a decree for specific performance itself. It is also not in dispute that these objections were not raised earlier. In view of these circumstances it could not be said that the learned Courts below have committed any error in disallowing these objections. Shri K.N. Agrawal, learned senior counsel has further placed reliance on another decision of this Court in the case of Hema Nana Sirvi vs. Gajanand Ramchandra, 1960 MPLJ 250 : 1960 JLJ 305 wherein in para 5 and 6 the law which has been laid down is being reiterated as under: 5. The question then that survives for consideration is whether the sale of a property in pursuance of a decree for specific performance is a voluntary sale for purposes of section 70 or is a compulsory sale. I have no doubt that the sale of the property pursuant to a decree for specific performance of a contract of sale is a voluntary sale. The sale is clearly not in execution of a decree. It is not even a sale by the decree itself. A decree for specific performance only declares the right of the decree-holder to have the transfer of a property covered by the decree executed in his favour. But a sale consequent to this declaration is fundamentally a voluntary sale. The voluntary nature of the sale becomes obvious from the fact that "the specific performance of a contract is its actual execution according to its stipulations and terms.... Such actual execution is enforced under the equitable jurisdiction... by directing the party in default to do the very thing which he contracted to do..." (see Fry on Specific Performance). The voluntary nature of the sale becomes obvious from the fact that "the specific performance of a contract is its actual execution according to its stipulations and terms.... Such actual execution is enforced under the equitable jurisdiction... by directing the party in default to do the very thing which he contracted to do..." (see Fry on Specific Performance). The element of voluntariness is present because what is enforced by a decree for specific performance is an agreement between two persons with a lawful consideration and in regard to the terms of which there has been a clear mutual understanding and a positive assent on both sides. This voluntary character of sale pursuant to a contract is not altered by the fact that a decree for the actual performance of the contract has been passed against the party bound to fulfil it. The sale of a property pursuant to a decree for specific performance is not a compulsory sale u/s 71(1). This is obvious from the plain provisions of that sub-section. In my opinion, the sale of a holding in accordance with a decree for specific performance is a voluntary sale and requires sanction of the Suba u/s 70 of the Act. It is easy to see that if a sale of a holding pursuant to a decree for specific performance, of a contract for its sale is not regarded as a voluntary sale and does not require any sanction u/s 70 and is not subject to the restrictions imposed by section 71, then the provisions of section 70 would be rendered altogether nugatory. On that view, the provisions of section 70 would be easily evaded by having a voluntary sale completed not directly but after obtaining without any contest a decree for specific performance. I must notice two decisions which were cited at the Bar. Learned counsel for the appellant referred me to Hakim Enayat Ullah Vs. On that view, the provisions of section 70 would be easily evaded by having a voluntary sale completed not directly but after obtaining without any contest a decree for specific performance. I must notice two decisions which were cited at the Bar. Learned counsel for the appellant referred me to Hakim Enayat Ullah Vs. Khalil Ullah Khan and Another, , where it was held that a decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in his favour and the sale deed executed by a Court in pursuance of a decree for specific transference is a transfer by the Court on behalf of the judgment-debtor, and if the judgment debtor is precluded from transferring the property by some statutory provision, the Court cannot, in violation of that provision, execute a sale deed of the property. In that case also, the Collector's previous sanction was necessary to the sale. The learned Judges of the Allahabad High Court were inclined to take the view that it was for the decree-holder to apply to the Collector for sanction and the Court itself could not move the Collector for necessary sanction. This view is not in accord with the observations of the Privy Council in AIR 1930 287 (Privy Council) that the terms of Order 21, Rule 32(4) are sufficiently wide to enable the Court executing the decree to appoint some person at the expense of the judgment-debtor to obtain the requisite sanction of the competent authority, if the judgment-debtor failed to obtain it. For these reasons, I am of the opinion that the decree obtained by the respondents is executable and the respondents can claim to have the holding sold to them after obtaining the sanction of the Suba u/s 70 of the Act. Learned counsel for the respondents stated before me that after the decision of the Additional District Judge of Nimar, the sale was effected and a sale-deed was also executed. If that be so, then the respondent-transferees must obtain the sanction of the Suba u/s 70(2) of the Act. Learned counsel for the respondents stated before me that after the decision of the Additional District Judge of Nimar, the sale was effected and a sale-deed was also executed. If that be so, then the respondent-transferees must obtain the sanction of the Suba u/s 70(2) of the Act. On the basis of above said two case laws, it can safely be said that there is no bar in passing the decree of specific performance of the contract even if the land in dispute is less than 5 acres in case of irrigated and 10 acres in case of unirrigated. The learned Trial Court erred in law in holding that there is a bar u/s 165(7) of the Code. The said finding is accordingly set aside. Learned counsel for the parties are heard on I.A. No. 773/95. Looking to the averments made in the application, the same is hereby allowed. The defendant is hereby directed that if he so desires may rebut this evidence. As an application under Order 41 Rule 27, CPC is allowed, the matter is remanded to the Trial Court for fresh decision of the case. The parties are directed to appear before the Trial Court on 23rd February, 2004. The respondents may file written statement in the Trial Court on or before 23rd February, 2004. In the result, the appeal succeeds and is hereby allowed. However, looking to the peculiar facts and circumstances of the case, parties are directed to bear their own costs. Final Result : Allowed