( 1 ) THIS is an appeal by the decree-holder against the order of the 2nd Additional district Judge, Durg, setting aside the order of the executing Court dated 19-71956 ordering delivery of possession of suit lands to tne decree-holder.

( 2 ) BRIEFLY stated the facts giving rise to this appeal are these. Plaintiff, Dadulal, had filed a suit for specific performance of contract against one Mantrial (defendant No. 1), who had contracted to transfer the suit lands to the plaintiff by a contract dated 9-11-1946 (Ex. P-1) but instead of transferring the land to him he transferred the same to Smt. Deokuwarbai and Shantilal (defendants 2 and 3 ). These defendants were, therefore, joined as purchasers of the land subsequent to the contract in favour of the plaintiff and, therefore, bound by it. The suit was decreed and the decree was maintained in second appeal also before the High court. In pursuance of the decree all the 3 judgment-debtors (defendants) were called upon to execute a sale-deed but having failed to do so the Court executed the necessary sale-deed in favour of the plain-tiff-decree-holder. Thereafter the plaintiff-decree-holder applied to the executing Court for being placed in possession of the property conveyed. The claim for being placed in possession was resisted by the judgment-debtors (defendants 2 and 3 only) on the ground that the decree did not grant the relief of possession and hence the executing Court had no jurisdiction to order delivery of possession. it was contended that the only remedy the decree-holder tad was to file a suit for possession. The executing court negatived the contentions of the judgment-debtors and decided to proceed with delivery of possession of the property. The judgment-debtors challenged this order in appeal where they succeeded and the order of the lower Court was set aside. It was held by the lower appellate Court that the decree had not granted the relief of possession and, therefore, the executing Court had no jurisdiction to order delivery of possession to the decree-holder in execution proceedings. Hence this second appeal. '( 3 ) IN my view the decision of the lower appellate Court is manifestly erroneous and is based on mis-interpretation of the decree in suit as also on the erroneous view of the law on the subject.

( 4 ) IT is not disputed that the plaintiff besides claiming specific performance of the contract evidenced by Ex. P-1 had also claimed the relief of possession over the property in question and the claim in suit was decreed. The lower appellate Court lost sight of the real operative part of the decree and laid unnecessary emphasis on other portions in the decree, which in my view, were strictly not necessary. In any case they were mere directions for purposes of giving effect to the real decree that was being passed. I may usefully, therefore, quote the final decision of the court; "issue No. 4: 'the plaintiff, therefore, becomes entitled to the relief claimed, suit is hence decreed. ' Defendants 2 and 3 shall pay the costs of the plaintiff, Defen-dants to bear their own costs. Plaintiff shall deposit into Court Rs. 664/- for payment to defendant Mantriial. Defendants shall execute a sale-deed for suit lands in favour of the plaintiff and get it registered. Pleader's fee Rs. 50/-if certified. (The underlining (here into ' ') is by me ). The real operative part of the decree was, therefore, this: "the plaintiff therefore become entitled to the relief claimed. Suit is hence decreed. " in appeals against this decree before the first appellate Court as also before the second appellate Court the operative portions of their respective decrees were as under :--First appellate Court: "it is ordered and decreed that the appeal fails ana is hereby dismissed, and 'the decree of the lower Court is confirmed'. " (The underlining (here in ' 'is by me ). Second appellate Court:

"this Court doth 'order and decree that the decree of the lower appellate court be and hereby is conf

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