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Civil Original Appeal No. 45 of 1957, decided on 22nd March 1960.

Ss. 12 & 27 and Civil Procedure Code (V of 1908), S. 47, O. 11 & O. XXI, r. 32 Suit for specific performance of contract for sale‑Relief for posses sion not prayed for and consequently decree passed in 'suit also silent as to delivery of possession‑Notwithstanding such omission executing Court not debarred from granting relief of possession Decree of specific performance includes not only execution of neces sary documents but putting vendee in possession as well.

Nathu valad Pandu v. Budhu valad Bhika I L R 19 Bom. 537 ; Krishnammal and another v. M. Soundararaja Aiyar I L R 38 Mad. 698 ; Sundara Ramanujan Naidu v. Sivalingam Pillai and another I L R 47 Mad. 150 ; New Mofissil Co. and another v. Shanker Lal Narayandas Mundade A I R 1941 Bom. 247 ; Narayan Kavirayar v. Kandasami Goundan I L R 22 Mad. 24 ; Deonandan Prasad Singh v. Janki Singh and another A I R 1920 Pat. 89 and Atal Behary Acharya v. Barada Prasad Benerji A I R 1931 Pat. 179 ref.

S. 53‑A‑Speck performance of contract‑Proforma‑defendant in suit not setting up right to property as defence‑Not entitled to claim such right in execution of decree for speck performance‑Protection of S. 53‑A barred in circumstances‑Decree of specific performance conclusive and binding‑Speck Relief Act (I of 1887), S. 27 (6).

T. Talukdar and Md. Yakub Hossain for Appellant.

M. A. Rouf for Respondents.

.‑This appeal arises out of a proceeding under section 47 of the Code of Civil Procedure. The plaintiff decree holder, it appears, filed a suit, being Title Suit No. 17 of 1955 for specific performance of a contract to sell and convey Premises No. 48/1, Ramkrlsbna Mission Road, Dacca.

2. The plaintiff claimed that the judgment‑debtors Nos. 1 to 3 had, in September 1352, agreed to sell and convey the aforesaid properties for a consideration of Rs. 13,500 and received a sum of Rs. 500 by way of earnest money. As there were some tenants in the premises, it was further agreed that the said tenants would be first evicted therefrom and the conveyance would be executed in favour of the plaintiff by December 1953. The said defendants, however, failed to evict them and it was then further agreed that the plaintiff would take the premises subject to the tenancies but the said defendants put off the execution of the deed of conveyance on various pretexts. The plaintiff ultimately, on making enquiries, came to learn that the said defendants had in the meantime entered into another agreement with proforma‑defendant No. 4 on the 11th of December 1954 to sell the said premises to the said proforma defendant, who is the appellant before us in this case.

3. In these circumstances, the plaintiff decree‑holder was compelled to institute the above‑mentioned suit on the 17th of February 1955, for specific performance of the contract by execution of the kabala, making the appellant before us a proforma‑defendant in the said suit.

4. In the plaint the plaintiff decree‑holder further stated that if the said proforma‑defendant No. 4 appeared and contested the suit, she might be transferred to the category of principal defendants and the suit decree against her as well.

5. The said proforma‑defendant, it appears from the order sheet of the said suit, did not contest the suit, but on her behalf a petition purported to have been filed on the 15th of September 1955, through her pleader one Mr. Md. Ali, saying that she had no objection to the decree being passed in favour of the plaintiff provided the sum of Rs. 2,500 paid by her as earnest money be refunded to her from out of the consideration to be deposited by the plaintiff in the suit.

6. The said suit itself was contested by the principal defendants Nos. 1 to 3 and ultimately decreed on contest on the 5th of December 1955, with costs against the said principal defendants and ex parte against the proforma‑defendant as well.

The decree is in these terms :‑---

"It is ordered and decreed that the suit be decreed on contest against defendant Nos. 1‑3 and ex parte against proforma‑defendant No. 4 with costs against defendants Nos. 1‑3 principal defendants Nos. 1‑3 do execute kabala with respect of the disputed holding in favour of the plaintiff within 30 days from the date of the decree on receipt of Rs. 13,000 in Pakistan Currency as the balance of the purchase money. In default the kabala will be executed by the Court on behalf of the principal defendants in favour of the plaintiff on his depositing Rs. 13,000 in this Court and an officer of this Court shall be deputed to present the kabala for registration and that the sum of Rs. 1,791‑4‑0 be paid by the defendants Nos. 1‑3 to the plaintiff on account of the costs of this suit."

7. The principal defendants, however, failed to execute the kabala, as directed by the decree. Hence, the kabala was executed by Court in favour of the plaintiff. After this, the proforma‑defendant filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. But the same was dismissed by the trial Court and the dismissal was confirmed by this Court as well.

8. The agreement to convey in favour of the proforma defendant No. 4, it appears; was executed on the 8th of December 1954, and was actually registered with the Sadar Sub‑Registrar of Dacca on the 11th December 1954 and in pursuance thereof, the said proforma‑defendant No. 4 entered into possession of the said premises on the 12th of January 1956. In these circum stances, the plaintiff decree‑holder on the 23rd of January 1957, again applied to execute the decree in the suit for specific performance by praying for khas possession of the property after evicting the said proforma‑defendant No. 4 therefrom and removing any other obstruction that may stand in the way. The said proforma‑defendant opposed the said application and in her objection she disclosed that in part performance of her contract the principal judgment‑debtors had already delivered possession of the premises to her.

9. The grounds upon which she opposed the said execution were that the decree for specific performance of a contract by exe cution of a deed of conveyance having already been executed by the Court in compliance with the decree in the said suit for specific peformance, the decree was fully satisfied and no further execution could be made of the said decree either by delivery of khas possession or in any other manner because the same would be clearly beyond the scope of the decree. She also challenged the decree itself being a fraudulent and ex parte.

10. At the hearing of the said objection it appears that it was also argued on her behalf that she having already entered into possession of the said premises in part performance of her contract of the 11th of December 1954, she was protected under section 53‑A of the Transfer of Property Act and could not now be evicted therefrom.

11. The executing Court, however, dismissed her objection and it is against the said order of dismissal that the appellant has now come up on appeal to this Court.

12. This matter was heard by us on the 18th and the 25th of November 1959 ; but as then we were informed that the appellant had already instituted a suit for having the aforesaid decree for specific performance set aside on the ground of fraud and collusion, we withheld the delivery of judgment in this matter as some of the questions raised in this appeal appeared to us to be common both to the said suit and this appeal. In these circumstances, we withheld the delivery of judgment at the request of the parties lest any opinion we might express herein with regard to the said questions might prejudice the parties in the suit itself. The said suit has, however, since been disposed of.

13. Before us the order of the executing Court is assailed on more or less the same grounds, and it is urged that the executing Court could not grant to the decree‑holder something which he had neither asked for in his plaint, nor was granted by the decree. In any event, a decree for a specific performance cannot be made against a person who is not a party to the contract sought to be specifically enforced. It is pointed out that the appellant was only made a proforma defendant in the suit and no relief was asked against her and hence the relief for khas possession by evicting her cannot be granted in execution of a decree for specific performance, particularly as the decree for specific per formance was fully satisfied by execution of the kabala. The cause of action, it is urged, for the recovery of khas possession arises only out and after the execution of the kabala and is a separate and independent cause of action which could not possibly have been a cause of action in the suit for specific performance itself. On her behalf, it is also claimed that the executing Court was wrong in holding that section 53‑A of the Transfer of Property Act did not protect the appellant from eviction.

14. In support of this contention reliance is placed on the decision in the case of Nathu valad Pandu v. Budhu valad Bhika (I L R 19 Bom. 537) where a plaintiff after having got a decree for specific per formance and having had the deed of conveyance executed by the Court on the failure of the defendant to do so, again brought a suit to recover possession on the strength of the deed of sale. The suit was opposed on the ground that it was barred by reason of the provisions of Order II, rule 2 of the Code of Civil Procedure. A Division Bench of the Bombay High Court, however, held that the cause of action in the second suit was not the breach of the contract of which specific performance was sought but a new and distinct one arising from the deed of sale which the defendant had contracted to pass and hence the suit was not barred.

15. This decision was followed in the case of Krishnammal and another v. M. Soundararaja Aiyer (I L R 38 Mad. 698). This was also case in which a second suit was filed for possession on the strength of the sale‑deed although in the earlier suit for specific performance the sale‑deed had been obtained in execution of the decree therein. It was again held in this case following the above quoted Bombay decision that the effect of section 55 when read with section 54 of the Transfer of Property Act and the Regis tration Act was that in the absence of an express agreement to transfer possession independently of a registered conveyance, the person agreeing to purchase has no right to the possession of the property until the conveyance is completed. Hence, the sub sequent suit for possession of the property on the basis of the conveyance obtained in execution of a decree for specific performance in the earlier suit, is not barred under Order II, rule 2 of the Code of Civil Procedure.

16. The same view was also taken in the case of Sundara Ramanujan Naidu v. Sivalingam Pillai and another (1 L R 47Mad. 150=A I R 1924 Mad. 360).

17. The Bombay High Court in case of the New Mofissil Co. and another v. Shanker Lal Narayandas Mundade (A I R 1941 Bom. 247) again reiterated the view that the cause of action in a suit for possession in such circumstances is not the same as the cause of action in a suit for specific performance of the contract. The cause of action for specific performance is on the contract but the cause of action for possession is on conveyance resulting from the contract. Hence, although the two causes of action may be joined in one single suit under Order I, rule 3 of the Code of Civil Procedure and section 27 of the Specific Relief Act for the sake of conveyance of the parties and to avoid multiplicity of proceeding, this does not mean that a subsequent suit for possession would be barred if the relief for possession had not been claimed in the earlier suit for specific performance of the contract.

18. This view, however, does not appear to have been accepted by the other High Courts in India. Indeed, the earlier view to the Madras High Court itself was to the contrary as will appear from the decision in the case of Narayan Kavirayar v. Kandasami Goundan (I L R 22 Mad. 24). In that case it was held that the right to possession arises coincidently with the right to the execution of a conveyance by the defendant, as they are both rights declared under section 55 of the Transfer of Property Act.

19. Again, in the case of Deonandan Prasad Singh v. Janki Singh and another (A I R 1920 Pat. 89) the view held was that ordinarily the plaintiff would be entitled to ask for both reliefs and a subsequent suit for delivery of possession would be barred by Order 11, rule 2 of the Code of Civil Procedure for the right to possession springs out of the contract for sale and the delivery of possession is included in the relief of specific performance arising coincidently with the right to the execution of the conveyance.

20. In the Patna case what had happened was that in an appeal to the Privy Council, the Privy Council had directed the execution of a conveyance but the decree of the Privy Council was silent as to the delivery of possession. The decree‑holders in that case nevertheless applied for execution of the decree by delivery of possession. The judgment‑debtor objected to this and contended that since the decree of the Privy Council was silent as to the delivery of possession, the plaintiff 'must bring a separate suit for such purpose. The Patna High Court, however, differing from the view taken in the case reported in I L R 38 Mad. 698, took the view that although the Judicial Committee had not expressly made an order for delivery of possession, that relief followed immediately from the order of execution of the conveyance.

21. Following this decision the Patna High Court again in the case of Atal Behary Acharya v. Borada Prasad Benerji (A I R 1931 Pat. 179) held that notwithstanding an omission in the plaint or in the decree about possession the executing Court is not debarred from granting the relief of possession of the property in a suit for specific performance, for the decree of specific performance includes not only the execution of the necessary document but also the putting of the vendee in possession of the property. The Patna High Court relied for this purpose not only on the provisions of section 55 of the Transfer of Property Act but also on the pro visions of Order XXI, rule 32 of the Code of Civil Procedure and held that the executing Court has abundant authority in such cases where the judgment‑debtor does not, as he is bound to do, put the plaintiff also in possession of the property, to order the delivery of such possession in execution of the decree.

22. The Calcutta High Court also holds the same view as will appear from the decision in the case of Kartik Chandra Pal v. Dibakar Bhattacharjee (A I R 1952 Cal. 362). In this decision the decisions of the Bombay High Court reported in I L R 18 Bom. 537 and of the Madras High Court reported in I L R 38 Mad. 698 and 47 Mad. 150 were all reviewed and considered, and it was pointed out that the right to recover possession springs out of the contract which is being specifically enforced and that such a right does not arise only as a result of the execution and completion of the conveyance. Thus the most important part of the decree is that portion where the Court directs the contract to be specifically performed. The details which follow do not in any way limit the jurisdiction of the executing Court to the particular steps mentioned in the decree but all such other steps which ought to be taken for giving full effect to the decree for specific performance are not only within the competence of the Court but the Court is bound to assist the party to that extent. The decree for specific performance thus sets out what it finds to be the real contract between the parties and declares that such a contract exists and thereafter it is for the executing Court to do the rest for the full implementation of that decree.

23. A similar view has also been taken in the Allahabad High Court in the case of Arjun Singh v. Sahu Maharaj Narain (A I R 1950 All. 415). In this case, too, reliance was placed on the provisions of Order XXI, rule 32, sub‑rule (5) of the Code of Civil Procedure and it was held that where in a suit for specific performance of a contract for sale no relief for possession is asked for and con sequently the decree passed in the suit also contains no relief for delivery of possession, the Court executing the decree is nevertheless competent to deliver possession because the order directing delivery of possession is merely incidental to the execution of the deed of sale.

24. Having considered these decisions, it appears to us that the preponderance of judicial opinion is in favour of the view that the relief by way of delivery of possession in a suit for specific performance springs out of the contract for sale and is incidental to the main relief of the specific performance granted in the suit, even though such a relief may not actually have been asked for in the plaint incorporated in the decree passed in the suit for specific performance. The executing Court had, therefore, in our view, abundant authority to execute the decree for specific performance by ordering delivery of possession of the property even after the deed had been executed on the failure of the under the authority of the Court.

25. The question that next arises is : Can such an order for delivery of possession be made against a person who is not a party to the contract of which specific performance has been awarded It is clear from section 27, clause (b) of the Specific Relief Act that the right of specific performance may be enforced against either a party to the contract or any other person claiming under such a party by a title arising subsequently to the contract except a transferee for value without notice of the original contract. In the present case admittedly the appellant before us claims title through the vendors, the principal defendants 1 to 3, in the suit for specific performance. Apart from this, in the present case the appellant actually entered into possession after the suit in which she was made proforma‑defen dant. Hence, she cannot take shelter under the plea that she was not aware of the decree that was passed against her as well at this stage after her application for having the decree set aside under Order IX, rule 13 of the Code of Civil Procedure has failed. She must be taken to have entered into possession at her own risk and with full knowledge of the decree.

26. With regard to the contention that the Courts below should have held that appellant was entitled to the protection under section 53‑A of the Transfer of Property Act, we have to point out that this section does not give the transferee any right on which she can now resist the decree. If she had any such right, the same should have been set up as a defence in the suit itself. That not having been done, she is debarred from claiming the said protection now after a decree has been passed against her as well for specific performance. The decree of specific perfor mance is conclusive and binding upon the appellant and she cannot be allowed now in the execution of the said decree to have the decree re‑opened and the question re‑agitated.

27. For these reasons, this appeal is dismissed with costs.

I agree.

S. Q./K. B. A. Appeal dismissed.

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