B.P.JHA, J.

1. The decree-holder preferred an appeal against the judgement of Sri Manoranjan Sahay Verma, 1st Additional District Judge, Chapra dated 31st July, 1974 in Miscellaneous Appeal No. 74 of 1972.

2. The plaintiff decree-holder filed a suit for specific performance of a contract against Hirdya Narain (defendant No. 1) and Pawan Kumar Gupta (defendant No. 2). The court passed the ex parte decree (Ext. F) against Hirdya Narain. The court directed Hirdya Narain to execute a sale deed within three months from the date of decree provided the plaintiff deposits Rs. 7,300 in court. It also directed that if defendant No. 1 fails to execute the sale deed by 5th July, 1969 then is that case the court shall execute the sale deed in favour of the plaintiff decree-holder. After the passing of the decree, the plaintiff decree-holder applied for execution in execution case No. 12 of 1969. The plaintiff deposited Rs. 7,300 in court. Though plaintiff complied with the direction of the court, Hirdya Narain (defendant No. 1) did not execute the sale deed as per direction of the court. In this circumstance, the court executed the sale deed in favour of the plaintiff decree-holder. Thereafter, the plaintiff decree-holder applied for delivery of possession under O.21, R.35 of the Code of Civil Procedure. The execution court issued the writ of delivery of possession and the Nazir effected the delivery of possession on 3rd April, 1970 (Ext. C/3). On 1st April, 1970, Pawan Kumar (defendant No. 2) filed a petition under Sec. 47 of the Code of Civil procedure and prayed that delivery of possession be stayed. The court by its order dated 3rd April, 1970 stayed the delivery of possession. The concurrent findings of both the courts are that the writ of delivery of possession was served by the Nazir on 3rd April 1970.

3. In the objection petition under S.47 of the Civil P.C., the defendant No. 2 raised several objections to the following effect :-

1. that the decree is inexecutable as no decree was passed against defendant No. 2.

2. that the decree did not provide for delivery of possession.

3. the court did not direct defendant No. 2 to deliver possession of the suit property.

4. After considering the objections of defendant No. 2 both the courts concurrently held :-

1. that the decree was inexecutable against defendant No. 2.

2. that delivery of possession effected by the Nazir on 3rd April, 1970 was illegal and the property should be redelivered to defendant No. 2 in accordance with law.

5. In the present case the short point for consideration is : whether the decree for specific performance of contract passed against Hirdya Narain (defendant No. 1) is executable against Pawan Kumar (defendant No. 2-respondent) ? In my opinion the impugned decree is inexecutable against Pawan Kumar (respondent). In this connection learned counsel for the respondent relied on a decision of the Supreme Court in Durga Prasad V/s. Deep Chand, AIR 1954 SC 75. In that case their Lordships of the Supreme Court held as follows (at p. 81) :-

"In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff."

In my opinion the decision of the Supreme Court applies to the facts of this case. If there is no decree against the subsequent purchaser (defendant No. 2) then, in my opinion, the decree cannot be executable against him. The reason is this :-

By virtue of the subsequent sale, title of the vendor (defendant No. 1) passed on to defendant No. 2. Unless and until the title of the subsequent purchaser (defendant No. 2) is cancelled or declared void, the executing court cannot ask defendant No. 2 (subsequent purchaser) to deliver possession of the property which he had validly purchased from the vendor (defendant No. 1). It is in this circumstance the Supreme Court was of the