P L D 1955 Dacca 13 (PLP)

ISPAHANI, J.--‑The appellants are judgment‑debtors who filed an appelication under section 47 and Order 21, Rule 2 of the Code of Civil Procedure to enforce specific performance of contract for sale of the decretal lands during the execution proceedings. This decree‑holders had applied for taking deli very of possession in the execution proceedings but the appellants in order to resist the decree‑holders from taking delivery of possession, filed the said .application alleging that during the pendency of the execution proceedings, the decree holders had entered into a contract for sale of the decretal lands to the appellants. The learned Subordinate Judge, by an order dated the 13th March, 1948, held that the agreement alleged was a new contract and appellants may seek their remedy in a proper Court if there be no bar to it and on this preliminary ground dismissed the application The appeal preferred against that order was dismissed by the learned Dis trict judge on the 20th July, 1948. Mr. Hasan, appearing for the appellants, has urged two grounds in support of the appeal, the first being that the learned Courts below should have acted under sub‑rule 2, Rule 2 of Order 21 of the Code of Civil Procedure and recorded the ad justment arrived at between the parties. He contended that both the Courts below should not have dismissed the applica tion on a preliminary ground without going into the merits and an opportunity should be given to the appellants to prove their case. The objection raised is in the execution proceedings. It is not based on any document. Even if there is any contract for specific performance, as alleged by the appellants, it will not constitute an adjustment under Rule 2 of Order 21 of the Code of Civil Procedure. The adjustment contemplated under the above rule is a transaction which extinguishes the decree as such in' whole or in part and results in a satisfaction of the whole or a portion of the decree in respect of the particular reliefs granted. Both the lower Courts were right in holding that the appellants may file a suit to enforce specific perfor mance of the alleged contract if there be no bar. It may be mentioned that in their objection petition the appellants do not mention that pursuant to the alleged contract the decree‑holders were not to take delivery of possession of the properties in respect of which execution was sought. This objection, therefore, in our opinion, cannot succeed. The next and last argument advanced is that the appli cation for execution was not maintainable without ascertaining the decretal lands. In order to satisfy ourselves we sent for the records of the case and on a perusal of the decree it is clear that the decretal lands have been sufficiently described and there would be no difficulty in identifying those lands. The lower Appellate Court, for greater safety, gave the direction that if necessary the Court could give directions to the Com missioner for ascertaining the decretal lands before actual delivery was given. We do not think that any difficulty will be experienced in view of the description of the lands given and the direction by the lower Appellate Court. The result then is that the appeal is dismissed but without any order as to costs. CHOWDHURY, J.‑I agree. A. H. Appeal dismissed.