( 1 ) THIS is an appeal by the judgment-debtor against an order passed by the Court below by which his objections were dismissed.

( 2 ) IT appears that in pursuance of a contract for sale of a house known as Esse Lodge in mussoorie, the decree-holder respondent obtained a decree for specific performance of the contract of sale. On appeal, this decree was affirmed by the High Court. The appellant failed to obey the decree although he had an opportunity of doing so. The decree-holder wag thus compelled to apply to the Court under Order 21, Rule 32, Civil P. C. , for executing the sale-deed in pursuance of the decree. The sale-deed was executed by the Court in favour of the decree-holder. It appears that the decree-holder failed to secure delivery of possession of the house in question. He then applied to the execution Court for delivery of possession of the house. The appellant then resisted the application and objected to delivery of possession on the ground that the decree was only for specific performance of the contract of sale and that it did not contain any relief regarding delivery of possession. It appears that in the plaint filed by the decree-holder, no relief was sought for possession of the property. The decree which was passed by the Court consequently contained no relief regarding delivery of possession.

( 3 ) THE Court below has overruled the objections. Against that order the judgment-debtor has come up in appeal.

( 4 ) LEARNED counsel for the appellant has contended that there being no decree for possession, the decree-holder was not entitled to apply for delivery of possession in the execution department, nor was the Court competent to deliver possession when the decree was silent on the point. The question, therefore is whether in 8 case like the present, the execution Court is competent to deliver possession of the property. The Court below has relied upon a Division Bench ruling of the Patna High Court in Atal Behary v. Barada Prasad, A. I. R. (18) 1931 Pat. 179 : (131 I. C. 529) where it was held :

"incidental to the relief to which a plaintiff is entitled in a decree for specific performance arising on a contract for sale, the Court has a right to grant possession of the property. A contract for sale includes not only the execution of the necessary document, but also putting the vendee in possession of the property. Therefore, if there is an omission in the plaint or in the decree about possession, the executing Court is not debarred from granting the plaintiff the possession of the property. "

( 5 ) THIS decision has followed an earliest Bench decision of the Patna High Court in the case of deo Nandan v. Janki Singh, (1920) 5 Pat. L. J. 314 : (A. I. R. (7) 1920 Pat. 89 ). In that case a share in a certain village had been sold in execution. Subsequently the sale was set aside and the court ordered a conveyance by the purchaser to the plaintiff. On appeal, this order was affirmed both by the High Court as-well-as by the Judicial Committee of the Privy Council. The decree in that case in terms directed the execution of the necessary document by way of conveyance in favour of the plaintiff. There was no order for delivery of possession, In execution of that decree, however, it was held by the Patna High Court that the executing Court bad a right to order delivery of possession of the property, the subject-matter of the suit.

( 6 ) LEARNED counsel for the appellant, however, has contended that the view taken in the Madras and the Bombay High Courts is contrary to that which has been upheld in the Patna High Court. He has invited our attention to the case of Nathu v. Budhu, 18 Bom. 537, and the case of krishnammal v. Sundararaja Aiyar, 38 Mad. 698 : (A. I. R. (l) 1914 Mad. 465), On the strength of these rulings, learned counsel has contended that it was not open to the execution Court to order delivery of possession of the house to the decree-holder.

( 7 ) WE have examined both these oases with du