The relief of possession is inherent in a relief for specific performance of contract for lease.

Sinha, J.

1. This appeal by the Judgment-debtors is directed against an order of the Court below directing delivery of possession to the decree-holder.

2. The decree-holder had brought a suit for specific performance of a contract of lease of certain property. The suit was decreed by consent on the 15th October, 1947, Execution Case No. 102 of 1948 was started on the 22nd September, 1948, on failure of the judgment-debtors to execute the lease. The lease was executed by the Court in March, 1949. On the 25th March, 1949, the decree-holder applied for delivery of possession, but that application was dismissed as premature, and on the 19th April, 1949, Execution Case No. 102 of 1943 was dismissed on full satisfaction, although no delivery of possession was given. It was not surprising that delivery of possession had not been given because, though the document had been executed sometime in March, 1949. It had not been registered until the 23rd March, 1950. The delay was caused because the document had to be impounded as it did not bear sufficient stamp. On the 16th December, 1952, another execution petition was filed which was numbered as Execution Case No. 112 of 1952, and the prayer was to treat that application as an application for revival of Execution Case No. 102 of 1948. This application, however, was rejected on the 7th January 1953 and on the 19th January, 1953, the present Execution Case No. 7 of 1953 was filed, and on the 30th June, 1953 the application was allowed.

3. Mr. Chatterji has submitted three points for our consideration.

(i) that no delivery of possession could be given because the decree did not provide for delivery of possession.

(ii) that the execution Case was barred by limitation because the previous Execution Case No. 112 of 1952 had been filed more than three years after the dismissal of the first Execution Case No. 102 of 1948. It was also urged in this connection that Article 182 and not Article 181 of the Limitation Act applied to this case; and

(iii) that the present application for execution was barred by the principles of res judicata.

4. In my opinion, there is no substance in any of these contentions. The suit, as I have said, was for specific performance of the contract for lease, and the relief for possession was inherent in that suit. It was pointed out in the case of Atal Behary V/s. Barada Prasad, AIR 1931 Pat. 179 (A), that incidental to the relief to which the plaintiff is entitled in a decree for specific performance of a contract for sale, the Court has a right to grant possession of the property, and that a contract for sale includes not only the execution of the necessary document but also putting the vendee in possession of the property, and Mahomed Noor, J, who was a party to that judgment, made the following observation:-

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"There is no doubt that the plaintiffs suit was for specific performance of contract of sale. It would have been quite enough for him if he would have simply prayed that the defendant be directed to specifically perform the contract for sale. If that relief was granted by the decree everything which was necessary for the contract to be specifically performed could have been ordered and enforced in the execution."

In that view of the matter, the point ought to be held concluded by that judgment. Mr. Chatterji, however, tried to submit that that judgment followed a previous judgment of thus Court in Deonandan Prasad Singh V/s. Janki Singh 5 Pat. L. J. 314: (AIR 1920 Pat 89) (B), but the latter judgment was distinguishable. In my opinion, the case reported in AIR 1931 Pat 179 (A), is similar to the facts of the present case, and we are bound by that decision. Even if we had no decision to guide us, there was no difficulty in holding that the relief of possession is inherent in a relief for specific performance of contract for lease. Mr. Chatterji also referred to a case reported in Dwijendra Narain V/s. Jogas Chandra De 39 Cal LJ 40: (AIR 1924 Gal 600)(C).