( 1. ) THIS appeal has been preferred by the judgment-debtor-appellant against the order passed by the Additional District Judge, Gwalior, in Case No. 7-A/1964-73 (Execution), dated 13th May 1976, directing delivery of possession to the respondent in execution of the decree for specific performance.

( 2. ) IT is not disputed that as no stay was granted in this appeal, the possession has already been handed over to the respondent, but it was stated on behalf of the appellant that this possession was handed over when a warrant was issued for possession subject to the decision of this appeal.

( 3. ) THE facts necessary for disposal of this appeal are that the property originally belonged to one Hidayatullah. His son, Hasmat Ullah was acting as a Mukhtiyar oh behalf of his father. It is not in dispute that this property consisted of shops and residential accommodation and the appellant Bata shoe Co. was the tenant in a shop in this building whereas the respondent was also a tenant in one of the shops. It is alleged that on 30-11-1958, Hasmat-ullah representing himself to be Mukhtiyar holding a power of attorney from his father Hidayatullah entered into an oral agreement with the plaintiff-respondent for purchase of the property in dispute and took certain amount as an advance. On 21-12-1958, this Hasmatullah showing the power of attorney in bis favour to the plaintiff-respondent entered into a written contract for sale of the property in dispute in favour of the plaintiff-respondent. The plaintiff-respondent, therefore, filed this suit for specific performance and also for delivery of possession against the legal representatives of late hidayatullah and also Bata Shoe Co. , the present appellant, who claimed to have obtained a sale deed in their favour of the suit property on 28th March 1959. It was. also alleged that before the sale deed was executed a notice dated 24-1-1959 was published in the news papers by the plaintiff-respondent about the intended purchase of this property and in response to this notice the present appellant Bata Shoe Co. issued a notice to the plaintiff-respondent that they had an agreement in their favour for purchase of this property. This notice given by the defendant was on the basis of the notice published in the press. In this suit filed by the plaintiff-respondent, the appellant-defendant contended that on the basis of two agreements dated 17-10-1958 and 18-11-1958 the property was sold by a registered sale-deed to the appellant bata Shoe Co. on 28-3-1959, and therefore, they have acquired title thereto.

( 4. ) THE plaintiff-respondent because of this sale-deed in favour of the appellant Bata Shoe Co. dated 28-3-1959 joined the appellant also as defendant in the suit and claimed as they had a prior agreement in their favour a decree for specific performance not only against the legal representatives of late Hidayatullah but also against the appellant Bata Shoe Co. This suit ultimately ended in a decree for specific performance in favour of the respondent. After the judgment of this Court in First Appeal No. 27/65 (Pritam das v. Mst. Akbari and others) where originally on the basis of a difference of opinion the matter was referred to a third judge and ultimately on the basis of the opinion of the learned third Judge this Court held the agreement in favour of the appellant Bata Shoe Co. was a mere manipulation and, therefore, held that there was a prior agreement in favour of the plaintiff-respondent, and, therefore, a decree for specific performance was granted in favour of the plaintiff-respondent against the legal representatives of the deceased hidayatullah and also against the present appellant Bata Shoe Company.

( 5. ) AFTER this decree was passed by this Court, the respondant- plaintiff filed an execution and in execution of that decree ultimately a sale-deed was executed in favour of the plaintiff-respondent by the Court and also a direction for delivery of possession was made and it is