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Report No. 86

VI. Form of Decree

730. Section 4(1) and form of the decree-Earlier case.-

There remain to be considered some procedural points concerned with section 4(1). The exact form of the decree to be passed under section 4(1) seems to have been a matter of some doubt in the past. Thus, in an Allahabad case,1 the Court, while not pronouncing a final opinion on this point, expressed a doubt as to the decree passed in that case by the lower court. The decree passed by the lower court was a simple money decree in favour of the plaintiff (transferee) for the sum awarded on account of compensation for the house (together with costs of the suit), against the defendant who had claimed the benefit of section 4.

The High Court pointed out that this decree had not the effect of transferring to the defendants the plaintiff's share, and observed-"We feel some doubt as to the precise form of decree which the Legislature intended to be passed in such a case". The High Court considered one possibility, namely, that the intention of the Legislature might be that the transferee should execute a deed of sale in favour of the member applying under section 4 (as in the case of a suit for specific performance of a contract of sale), and that, after the execution of such a document, the defendant would become liable to the plaintiff for the unpaid purchase-money and the plaintiff would obviously be entitled to maintain his suit "for the recovery of the same if not already paid".

The High Court observed that perhaps the Legislature did not intend a cumbersome procedure. But it had no doubt that the decree passed should be one which has the effect, in law of transferring the ownership of the plaintiff's share to the defendants, and for that reason it modified the decree so as to direct that the plaintiff was entitled to recover the sum from the defendants and that the Court shall put the defendants in possession of the plaintiffs share and declare them to be the owners of the same.

1. Ilias Ahmad v. Bulaqi Chand, ILR 39 All 672 (674): AIR 1917 All 2 (3) (Piggott and Ryves, )j.).

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