Anil K. Sen, J.
1. This is an appeal at the instance of the judgment-debtor directed against an order dated July 9, 1982, passed by the learned Subordinate Judge, 3rd Court, Alipore, dismissing an objection under Section 47 of the C. P. C. read with Order 21, Rule 34 of the said Code. Since no appeal lies against an order dismissing an objection under Section 47 of the Code, the appellant had earlier filed an application in revision on notice to the decree-holder, being C. O. 2242 of 1982 which is being heard along with the appeal. Since the decree-holder had already entered appearance we admit the appeal, dispense with service of the notice of appeal and we proceed to dispose of both the appeal and the revisional application by this judgment of ours.
2. On April 28, 1977 (?), the present appellant entered into an agreement with the pre-sent respondent to sell the suit property which is a demarcated part of premises No. 2, Andul Raj Road, Calcutta, and which had been allotted to the share of the appellant's father under a partition decree passed on an award in Title Suit No. 16 of 1944. The respondent instituted Title Suit No. 86 of 1976 for specific performance of that agreement and for delivery of possession of the suit property. That suit was decreed on Jan. 29, 1980, by the learned Subordinate Judge, 3rd Court, Alipore, on the following terms :
'That the suit be and the same is decreed on contest with costs. The defendant is directed to execute a deed of conveyance for the suit property in favour of the plaintiff and to sell the suit property to the plaintiff in terms of the agreement marked Ext. 2. The defendant is also directed to repay to the plaintiff the sum of Rs. 17,073.42 the benefit which the defendant received for the said property. The defendant is directed to perform his part of the contract by executing a deed of sale and by making repayment of the excess amount as ordered above within 3 months of the decree. In default, the plaintiff shall be entitled to enforce the agreement and obtain the deed and also recover excess amount of Rs. 17,073.42 from him through Court as per law.'
3. The appellant having failed to execute the conveyance and perform the contract amicably, the respondent put that decree into execution under Order 21, Rule 34 of the Code. A draft conveyance having been submitted before the executing Court the respondent prayed for execution of the document as per draft conveyance by the defendant, failing compliance, execution and registration by the Court on behalf of the judgment-debtor and thereafter delivery of possession through process of Court and also for realisation of the decretal dues and costs.
4. The appellant raised an objection under Section 47 of the Code read with Order 21, Rule 34 thereof. The substantial objection that was pressed before the executing Court was to the effect that when the Court passing the decree had not granted the relief for possession expressly prayed for in the plaint, the executing Court cannot sustain the prayer for possession in execution of such a decree. Reliance was placed on the provision of Section 22 of the Specific Relief Act, 1963, in support of such a contention. The learned Subordinate Judge by the impugned order having overruled the said objection, the judgment-debtor has preferred the present appeal and the revisional application.
5. In this appeal and the revisional application Mr. Dasgupta appearing on behalf of the judgment-debtor-appellant has raised two points, one of which was not raised in the Court below. He has first contended that in the present case the decree-holder/ respondent in his suit expressly prayed for two reliefs, namely, specific performance of the agreement for sale and delivery of possession after such specific performance but the Court thought fit to grant only one of the said reliefs prayed for, namely, the specific performance of the agreement for sale but not the other, namely, delivery of possession after such performance. Hence according to Mr. Dasgupta plaintiff's prayer-for possession as made in the suit must be deemed to have been refused because a prayer made in a plaint and not allowed by the Court must be taken to have been rejected by the Court. Hence according to Mr. Dasgupta the respondent is not entitled to claim delivery of possession in execution of the decree. The second point raised by Mr. Dasgupta is with reference to the draft conveyance. He objects to an indemnity clause being incorporated in the conveyance. According to Mr. Dasgupta the parties agreed that the purchaser must satisfy himself as regard the vendor's title to convey before obtaining the conveyance and he had his rights to terminate the agreement and get back the earnest money in the event there were reasonable grounds to doubt the title of the vendor to the suit property. Therefore, according to Mr. Dasgupta once the respondent enforces the agreement and obtains conveyance on his satisfaction as to the title of the vendor he is not entitled to claim any further guarantee of title by way of any indemnity clause as proposed in the draft conveyance.
6. Mr. Mitter appearing on behalf of the decree-holder/respondent has strongly contested the first point raised by Mr. Dasgupta. According to Mr. Mitter the Court must construe the decree in the light of the judgment and so construed it would appear beyond all doubts that the plaintiffs prayer for recovery of possession was also allowed. In any event, according to Mr. Mitter, the ordinary rule that a prayer expressly made must be deemed to have been overruled when it has not been allowed can have no application in the present case when the decree is one of specific performance of a contract, an integral part whereof is delivery of possession. So far as the second point raised by Mr. Dasgupta is concerned, Mr. Mitter in his usual fairness has not been able to controvert the same seriously.
7. Before we proceed to consider the first point raised by Mr. Dasgupta, we propose to dispose of the second point raised by him in respect of which there is no serious controversy between the parties. Jt is not disputed that in the last part of the draft conveyance proposed by the decree-holder/ respondent an indemnity clause has been incorporated which provides that the purchaser would be indemnified against all encumbrances created by the vendor or by any person or persons lawfully or equitably from under or in trust for the vendor. It is also Dot in dispute that in the original agreement between the parties there was no provision that the proposed sale would be subject to any such indemnity. On the other hand, the agreement contemplates that the purchaser must satisfy himself about the title of the Vendor in obtaining the conveyance. In such a situation when the purchaser on his own satisfaction or at his own risk has proceeded to enforce the agreement and have the conveyance in his favour he is not entitled to any guarantee by way of an indemnity clause in the conveyance to be executed in his favour. Though this objection was not raised before the executing Court We allowed Mr. Dasgupta to raise it since it appears on the face of the record that the decree-holder/ respondent is not entitled to incorporate such a protective clause in the proposed conveyance. We, therefore, sustain this objection raised by Mr. Dasgupta on behalf of the judgment-debtor and direct the executing Court to delete the indemnity clause from the proposed conveyance and the proposed conveyance be revised accordingly.
8. Next we proceed to consider the first point raised by Mr. Dasgupta. The decision on the point requires construction of the decree as also the effect of the newly revised provision of Section 22 of the Specific Relief Act, 1963. It is not disputed before us that Clause 4 of the agreement for sale expressly provided that the vendor shall make over to the purchaser vacant possession of the entire ground floor except the room let out to Messrs. S. P. Dutta & Company, the first and the second floor of the suit premises by removing the co-sharers from the said portion. It is also not in dispute that in filing the suit the respondent claimed both the reliefs of specific performance of the contract dated April 28, 1967, and for possession of the suit property after execution and registration of the document. At the trial no specific issue was raised as to whether the plaintiff was entitled to a decree for possession obviously because delivery of possession being a part of the express agreement between the parties the issue that was raised was to the effect : 'Is the plaintiff entitled to get a decree for specific performance of the contract as prayed for?' When we read the judgment as a whole decreeing the said suit, it appears to us that the learned Subordinate Judge expressly overruled an objection raised at the trial to the effect that the contract being contingent and the contingency, namely, the vendor recovering possession from his co-sharers not having matured, the suit on the prayers made must be deemed to be premature. Having overruled all the objections raised on behalf of the appellant including the objection as above, the suit was decreed in terms set out hereinbefore. It is true that the decree is silent with regard to the prayer for possession. The prayer for possession had neither been expressly overruled nor expressly allowed. But the fact remains that the Court allowed the plaintiff's prayer for specific performance of the contract which itself incorporates a clause for delivery of possession. When the decree contains a direction upon the judgment-debtor to sell the suit property to the plaintiff in terms of the agreement marked Ext. 2 it necessarily embodies a mandate to fulfil all the terms including the term for delivery of possession. Construing the decree in the light of the judgment in the present case we feel no hesitation in accepting the contention of Mr. Mitter that the Court in decreeing the suit allowed the prayer for delivery of possession; it was not necessary for the Court to direct such delivery of possession expressly because the Court was directing enforcement of the entire agreement including the agreement to deliver possession. It is not a case where we can apply the principle contended for by Mr. Dasgupta, namely, a prayer made in the plaint not being allowed, must be deemed to have been refused. Whether a particular prayer has been allowed or not is a matter of construction of the decree in the light of the judgment and any silence in that regard in the decree would not necessarily lead to the conclusion that it had been disallowed.
9. Strong reliance has been placed by Mr. Dasgupta on the revised provision of Section 22 of the Specific Relief Act, 1963, Which reads as follows :--
'22. Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for --
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused.
(2) No relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the Court unless it has been specifically claimed :
Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the Court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation under Section 21.'
According to Mr. Dasgupta having regard to the provision of Section 22(2) as aforesaid, it is incumbent on a plaintiff now to pray for possession along with the prayer for specific performance in every case and when it is not so prayed for no such relief would be admissible to a plaintiff in a suit for specific performance. Here in the present case, according to Mr. Dasgupta, the plaintiff having prayed for such a relief and having failed to obtain the same stands in a position worse than the one contemplated by Sub-section (2) as aforesaid. We have carefully considered such a contention raised by Mr. Dasgupta but we are of the view that it would be too wide a proposition to be accepted when it is contended by him that in every case for specific performance the plaintiff must come with an independent prayer for delivery of possession and when he fails to do so he would not be entitled to claim any such relief. Mr. Dasgupta's contention overlooks the qualifying words used by the legislature in Sub-section (1) of Section 22 when the legislature speaks of such a prayer being made 'in an appropriate case' and 'in addition to such performance'. Where delivery of possession is one of the terms of the contract either expressly set out as such in the contract itself or by necessary implication of law as under the provision of Section 55 of the Transfer of Property Act, a prayer for specific performance of such a contract necessarily incorporates a prayer for delivery of possession by the vendor after execution and registration of the deed. Therefore, there is no reason to think that a purchaser who seeks performance of a contract including a term therein providing for delivery of possession is not claiming such a relief in the suit only because he has not made an independent prayer for possession. Before incorporation of the revised provision of Section 22 in the Specific Relief Act, 1963, there was a long line of decisions of different High Courts taking the uniform view that the relief of possession being inherent in a relief for specific performance of a contract of sale or lease, such a relief need not necessarily be prayed for separately and a Court executing a decree for specific performance of such a contract can grant possession. Reference may be made to the cases of Kartick Chandra Pal v. Dibakar Bhattacharya, : AIR1952Cal362 ; Subodh Kumar v. Hiramoni Dasi, : AIR1955Cal267 ; Bal Mukund v. Veer Chand, : AIR1954All643 ; Janardan Kissore v. Girdhari Lal, : AIR1957Pat701 and Md. Ali Abdul Chanimomin v. B. K. Abdulla, AIR 1973 Mys 131.
10. The Supreme Court in a recent decision, Babulal v. Hazarilal, : 3SCR94 in approving the above view, has pointed out that the revised provision of Section 22 of the Specific Relief Act, 1963, has not altered the said legal position. A contention similar to the one now raised by Mr. Dasgupta was also raised before the Supreme Court. But such a contention was overruled when the Supreme Court observed (at p. 824) :
'The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases. This argument ignores the significance of the words 'in as appropriate case'. The expression only indicates that it is not always incumbent oa the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of immovable property. That has to be done where circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent In the relief for specific performance of the contract for sale.'
11. In this view, we are unable to accept the contention of Mr. Dasgupta which proposes to ascribe wider connotation, to the bar, incorporated under Sub-section (2) of Section 22 of the Specific Relief Act. In out view, where delivery of possession is a part of the agreement between the parties in a suit for specific performance of such an agreement, the prayer for specific performance necessarily contemplates specific performance of the entire agreement including the agreement to deliver possession and an omission on the part of the plaintiff-purchaser to make an express prayer in that regard would not necessarily bring in the bar under Sub-section (2) of Section 22 of the Specific Relief Act.
12. Before we conclude it is necessary for us to refer to and consider a recent Single Bench decision of this Court taking a different view though that had not been cited at the bar. That is the decision in the case of Atul Chandra Sardar v. Pramila Bala Dassi, (1982) 2 Cal HN 187. In that case the plaintiff/decree-holder who had obtained a decree for specific performance of a contract for reconveyance of certain property, asked for and was given the relief for poossession in execution by the executing Court. On a revision to this Court, the learned Single Judge reversed the decision of the executing Court in that regard when he held that without amendment of the plaint, the executing Court cannot allow the decree-holder's prayer for recovery of possession simply because the execution petition was amended. This decision appears to us to be just contrary to and in oversight of the decision of the Supreme Court in Babulal's case : 3SCR94 (supra) reference to which was made in the judgment of the learned Single Judge in a different context. In Babulal's case there was no specific prayer or direction for delivery of possession either in the plaint or in the decree. Such a prayer was allowed to be brought in at the stage of execution by the High Court. The decision of the High Court was challenged before the Supreme Court and the contention raised was 'in face of the clear mandate of Sub-section (2) it was not open to the High Court to have allowed the relief of possession at the execution stage, and in any case without an amendment of the plaint. In overruling such a contention the Supreme Court pointed out, 'the mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefit of the decree when Section 55 of the Transfer of Property Act authorises the transferee to get possession in pursuance of a sale deed'. The learned Single Judge referred to the above decision of the Supreme Court in support of a proposition that an objection under Section 47 of the Code is maintainable even after possession has been delivered in execution on that decree; but unfortunately no such point appears to have been considered or laid down by the Supreme Court in the said decision. With greatest respect to the learned Judge we, therefore, feel constrained to disapprove the said decision.
13. That apart in the present case on our findings made hereinbefore, the purchaser had incorporated a prayer in the plaint for delivery of possession as a part of agreement between the parties and that prayer was allowed by necessary implication when the Court directed the vendor to sell the propearty to the purchser in terms of the agreement itself. The first objection raised by Mr. Dasgupta, therefore, must fail and is overruled.
14. In the result, the appeal succeeds in part. The objection as to the prayer for delivery of possession being overruled the executing Court is directed to proceed with the execution on all its prayers subject to this modification that in executing the deed of conveyance on behalf of the judgment-debtor the said Court should expunge the indemnity clause incorporated in the proposed draft and revise the draft accordingly. The possession to be delivered must be in terms of the agreement and subject to the limits incorporated therein so that if there be co-sharers still in possession in the suit premises, the decree-holder may be put into possession in the right of the judgment-debtor entitling him to seek recovery of possession from the said co-sharers in accordance with law. The appeal and the application be disposed of accordingly.
15. No formal decree need be prepared in this appeal. Let the order be communicated to the Court below forthwith.
S.N. Sanyal, J.
16. I agree.