Kulwant Sahay, J.

1. The is an appeal against the order of the Subordinate Judge of Darbhanga dismissing the appellant's, objection to the delivery of possession of certain immoveable properties in execution of a decree. The facts leading up to the execution in question are shortly these:-

One Shivanath Jha executed a Thicca patta on January 7th, 1915 in respect of certain properties in favour of the appellant Mohit Narain Jha. Shivanath Jha died in 1917 leaving two widows Mt. Kunto Dai and Mt. Bhawani Dai. In the year 1918, the respondents Kamal Nath Jha and others instituted a suit in the Court of the Subordinate Judge of Darbhanga for declaration of their title as heirs of Shivanath Jha and for recovery of possession of the properties left by him. In this suit the two widows were the defendants 1st party and the lessee (the present appellant) was the defendant 2nd party. This suit was decreed on August 3 1st, 1920 and the material portion of the decree was in the following terms: "It is ordered and decreed that the suit is decreed and title of the plaintiff's over the property in suit is declared. The plaintiffs will get possession through the Thikadars during the Thika period (i.e., they will get rent from the Thikadar during the period of the Thika) and afterwards they will get Khas possession over the property in suit". The plaintiffs executed the decree and obtained sympolical possession as against the widows in December 1920 and the appellant the lessee continued in possession. On September 17th 1921 the plaintiffs decree-holders made the application for delivery of possession as against the lessee on the ground that the period of the lease had expired in the year 1328 Fs. and the lessee objected on the ground that the period of lease did not expire in 1328 but extends up to 1335, The Subordinate Judge has dismissed the objection holding that the period expired in the year 1328 and the lessee appeals against this order.

2. The only substantial question for decision in this appeal is, what was the period of the Thika stated in the decree under execution In order to determine this point it is necessary to consider the terms of the Patta granted by Shivanath Jha. In paragraph 1 of the Patta it is provided that the lease was for a term of seven years from 1322 to 1328 Fs. Then paragraph 5 runs as follows: The period of Thika under this Patta will expire in 1328 (twenty-eight) Fs. I, the executant have agreed (original torn-Sarat Kiya) that I shall execute a fresh Patta for seven years from 1329 (twenty nine) to 1335 (thirty-five) Fs. with respect to all the Mauzas and the lands leased out on the above amount of Jama and on the condition of this deed and the possession of the Thikadar will continue up to 1335 Fs. and at the time of Sir possession (of me, the executant) the said Thikadar or his heirs and representatives will give up his or their possession on the 30th Bhado, 1335 Fs. and at that time whatever rent, Naqdi or in kind, will be payable by the tenants, I, the executant, shall allow a set off of the same towards the rent."

3. Now the plain meaning of this pargraph in the Patta is that there was a clear agreement between the parties that after the expiration of the first period of seven years the lessee was to continue in possession for a term of another seven years on the same condition as before and therefore the period of the Thika was to extend up to the year 1335 Fs. It is urged by the learned Vakil for the respondents that under the terms of the Patta the lease for the second term of seven years was to come into effect only on the execution of a fresh Patta and as no such Patta was executed the appellant is not entitled to remain in possession after 1328. In my opinion this contention is not well-founded. There was a clear agreement between the parties that the lessee was to continue in possession for a fresh term of seven years. The lessee is in possession. He can if he likes, enforce specific performance of the agreement to execute a fresh Patta and to this, the respondents can have no defence. In my opinion the position of the appellant is the same as if a fresh document had been executed. I am supported in this view by the principle laid down in the case of Shyam Kishore Dey v. Umeshchandra Bhattacharia (1919) 24 C.W.N. 463. In that view of the case I am of opinion that the respondent decree-holder is not entitled to recover Khas possession until the lease expires in 1335 Fs.

4. Two other points were taken by the learned counsel for the appellant viz., that the decree having been already executed, the present application for execution could not be entertained and that the execution could not proceed without a notice under O. 21, R. 22 C.P.C. In my opinion there is no substance in these points.

5. The result is that the appeal is allowed, the order of the lower Court is set aside and it is declared that the appellant is entitled to retain possession under the Thika up to the year 1335. Fs. The respondent will pay the costs of the appellant in this Court and in the Court below.

John Bucknill, J.

6. I agree.