NARENDRA CHANDRA SAHA Vs. SMT. MATANGINI ROY
HIGH COURT OF GAUHATI
Narendra Chandra Saha
Smt. Matangini Roy
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R.S. Bindra, J.C. -
(1.) 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/s. 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 Sec. 55 of the Transfer of Property Act.
Clause (f) of sub -section (1) of Sec. 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 or the property as its nature admits. It follows that is 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, 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. 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/s. Girdhari Lal, : AIR 1957 Pat 701, and the other of Calcutta High Court. Subodh Kumar v/s. Hiramoni 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.;
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