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Appeal from Appellate Order No. 21 of 1954, decided on 25^th July 1962.

Specific performance ‑ Contract of sale of land ‑ Right to recover possession springs out of contract‑Decree‑Direction for delivery of possession becomes part of decree though not embodied in it‑Transfer of Property Act (IV of 1882), Ss. 54 & 55 (1).

Kartik Chandra Pal's case A I R 1952 Cal. 362 and Subodh Kumar Banerjee v. Hiramoni Dasi A I R 1955 Cal. 267 rel.

Abdul Aziz for Appellant.

D. L. Rahman for Respondents Nos. 1 to 4.

‑This appeal is directed against the order passed by the District Judge, Pabna, in Miscellaneous Appeal No. 3 of 1960. The respondents obtained a decree for specific perfor mance of a contract for sale of land against one Ram Prosad Sen and in execution of the decree, he got the kabala executed by the Court. Thereafter the respondents prayed for delivery of possession of the land relating to the kabala.

2. The appellant filed objection under section 47 of the Code of Civil Procedure alleging that he was a tenant of the original judgment‑debtor and that the prayer of the respondents for getting delivery of possession of the land was not maintain able as there was no decree to the effect.

3. The objection was overruled by the learned Subordinate Judge. Against that, there was an appeal to the District Judge, which was also dismissed. Hence this appeal.

4. Mr. Aziz, the learned Advocate for the appellant, has contended that the executing Court cannot go behind the decree, and direct delivery of possession, as there was no decree to that effect.

5. The learned Advocate has drawn our attention to Order XX, rule 6 and to Order XXI, rules 35 and 95 of the Code of Civil Procedure, Order XX, rule 6 states what are to be the contents of a decree. Order XXI, rule 35 provides for delivery of possession when a decree for delivery of any immovable property is passed. Order XXI, rule 95 relates to delivery of immovable property to the purchaser in a Court sale. It has been contended that delivery of possession of immovable property can be given if there be a decree for that and that as the decree in the present case was merely for specific performance of a contract by executing a kabala, and not for delivery of possession, the executing Court was wrong in giving direction for delivery of possession. In support of this contention, the learned Advocate has referred to the case of Krishnammal and another v. M. Soundaraja Aiyar (I L R 38 Mad. 698). The principal question for consideration in that case was whether a plaintiff who obtained in a previous suit a decree against the defendants for specific performance of agreement to sell certain immovable property to the plaintiff and got a sale deed in his favour in execution of the decree, could institute another suit subsequently for recovery of possession of the lands relating to the agreement. The objection was raised that the suit was barred under Order II, rule 2 of the Code of Civil Procedure. It was held that the second suit was not barred. There is no dispute about this principle, but the point at issue in this case is whether on the basis of the decree for specific per formance of a contract, there can be delivery of possession of the land relating to the contract. It also appears that in the above mentioned case, the agreement did not contain any covenant on which the plaintiff could have sued for possession. This case does not help the appellant.

6. Mr. Aziz has also contended that the effect of section 55(1)(f) of the Transfer of Property Act read with section 54 of the Act is that the purchaser has no right to the possession of the property as section 55(1)(f) binds "the seller" of the property on being so required to give possession to the buyer.

7. The relevant portion of section 55 of the Transfer of Property Act for the purpose of this appeal is as follows:

"in the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold;

(1) The seller is bound‑

(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits."

8. It follows that unless there is a contract to the contrary, giving delivery of possession to the buyer by the seller is an incident of a contract for sale. In a suit for specific performance of a contract for sale of land, 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. When such a suit is decreed, this direction for delivery of possession becomes a part of the decree, although not specifically mentioned in it. The above‑view is supported by the cases of Kartik Chandra Pal v. Dibakar Bhattacharjee (A I R 1952 Cal. 362) and Subodh Kumar Banerjee v. Hiramoni Dasi and others (A I R 1955 Cal. 267) of which reference was made by Mr. D. L. Rahman, the learned Advocate A for the respondents. In the case reported in A I R 1952 Cal. 362, the following observation was made:

"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 jurisdic tion of the executing Court to the particular steps which are 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."

9. In the present case there has been the decree for specific performance of the contract. In execution of the decree, the respondent is entitled not only to get the kabala executed and registered but also to get delivery of possession of the land concerned.

10. Mr. Aziz has further contended that as the decree‑holder on a previous occasion also started an execution case for delivery of possession which was refused on the objection of the appellant under section 47 of the Code of Civil Procedure, the present execution case for delivery of possession is barred. It has been contended that though the judgment of that case was filed, the Courts below did not consider it and that as such the case should be sent back on remand so that there can be afresh decision after consideration of this judgment. But no such objection was taken in the application under section 47 of the Code of Civil Procedure. No such ground has been taken in the memorandum of appeal. There is nothing in the record that any such judgment was filed in Courts below. No application has been filed before us for taking additional evidence. In the circumstances, the question of sending back the case on remand for consideration of the judgment cannot arise. There is no substance in this appeal.

The result is that the appeal is dismissed with costs.

----I agree.

S. B./A. H.

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