# [1956] 1 S.C.R. 62

- **Citation:** [1956] 1 S.C.R. 62
- **Court:** Supreme Court of India
- **Decided:** 1954-05-05
- **Bench:** VIVIAN BosE, Jafer Imam, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1956-1-s-c-r-62-1251
- **Pages:** 10

## Headnote

Execlttion-Power of transferee Court,-DeOTet for specific pSf'-
formance-Reciprocal conditions indissolubly link.d together-AltSf'ation in a material particular, if permissible-Code of Civil Procedure
(Act F of 1908), ss. 47, 42, 0. XXI, r. 82(1).
An executing court cannot go behind a decree so as to vary its
terms and when the obligations it imposes on the paities are
reciprocal and inseverable, rendering pa.rtie.l execution impossible,
the decree must be executed wholly as it stands or not at all.
This
is particularly true of a decree for specific performa.nce where the
party who seeks execution must satisfy the executing court that he
is in a position to perform the obligations which the decree imposes
on him.
That in cases where the identity or substance of what the decree
directs a party to give to the other is in dispute, the .executing court
alone has the power to decide it under s. 4 7 of the Code of Civil
Procedure and under s. 42 of the Code the powers of the court
executing a decree on transfer are identical with those of the court
which passed the decree.
That although the remedy provided by O. XXI, r. 32(1) of the
Code of Civil Procedure is available in executioD. of a decree for
specific performance, it can be used only by a person entitled to execute the decree and if, by reason of bis own incapacity to perform
his part, he is precluded from seeking execution, O. XX!, r. 32(1),
Can have no application.
Consequently, in a. case where, as in the present, the defendant
sought to execute a decree for specific performan~e of a contract but
was himself unable to perfor1n one of the obligations the decree imposed on his party, namely, to transfer five a.nnas share in a
\ -
partnership firm, for the res.son that the firm had ceased to exist by
dissolution before the date of execution, he wn.s not entitled to execute the decree.
Heldf7trther, that the defendant could not be allowed to substitute five a.nnas share in the assets of the dissolved firm instead, as
that would amount to an alteration of the decree which the execution court was not competent to make.

## Text

1956
62
SUPREME COURT REPORTS
JAI NARAIN RAM LUNDIA
v.
(1956)
KEDAR NATH KHETAN AND OTHERS.
[VIVIAN BosE, JAFER IMAM and CHANDRASEKHARA
AIYAR JJ.)
Execlttion-Power of transferee Court,-DeOTet for specific pSf'-
formance-Reciprocal conditions indissolubly link.d together-AltSf'ation in a material particular, if permissible-Code of Civil Procedure
(Act F of 1908), ss. 47, 42, 0. XXI, r. 82(1).
An executing court cannot go behind a decree so as to vary its
terms and when the obligations it imposes on the paities are
reciprocal and inseverable, rendering pa.rtie.l execution impossible,
the decree must be executed wholly as it stands or not at all.
This
is particularly true of a decree for specific performa.nce where the
party who seeks execution must satisfy the executing court that he
is in a position to perform the obligations which the decree imposes
on him.
That in cases where the identity or substance of what the decree
directs a party to give to the other is in dispute, the .executing court
alone has the power to decide it under s. 4 7 of the Code of Civil
Procedure and under s. 42 of the Code the powers of the court
executing a decree on transfer are identical with those of the court
which passed the decree.
That although the remedy provided by O. XXI, r. 32(1) of the
Code of Civil Procedure is available in executioD. of a decree for
specific performance, it can be used only by a person entitled to execute the decree and if, by reason of bis own incapacity to perform
his part, he is precluded from seeking execution, O. XX!, r. 32(1),
Can have no application.
Consequently, in a. case where, as in the present, the defendant
sought to execute a decree for specific performan~e of a contract but
was himself unable to perfor1n one of the obligations the decree imposed on his party, namely, to transfer five a.nnas share in a
\ -
partnership firm, for the res.son that the firm had ceased to exist by
dissolution before the date of execution, he wn.s not entitled to execute the decree.
Heldf7trther, that the defendant could not be allowed to substitute five a.nnas share in the assets of the dissolved firm instead, as
that would amount to an alteration of the decree which the execution court was not competent to make.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 206 of 1955.
S.C.R.
SUPREME COURT REPORTS
63
On appeal from the judgment and order dated
7956
the 5th May 1954 of the Patna High Court in Appeal Jai Narain Ram
from the Original Order No. 284 of 1951 arising out
Lundia
of the order dated the 11th July 1951 of the Court of
v.
Subordinate Judge, Motihari in Misc. Case No. 30 of
KedarNath
1951.
Khetan at1d others
Veda, Vyas, (S. K. Kapur and Ganpat Rai, with
him) for the appellant.
0. K. Daphtary, Solicitor-General of India (K. B.
Asthana and 0. P. Lal, with him) for respondent
No. 1.
1956. January 31. The Judgment of the Court
was delivered by
BosE J.-This appeal arises out of certain execution proceedings. The decree which the appellant,
J ainarain 'Ram Lundia, seeks to execute is one that
directs specific performance of a contract to sell certain
shares in a private limited company known as the
Ganga I)evi Sugar Mills, together with a five annas
share in a partnership firm called the Mai:wari
Brothers, on payment of a sum of Rs. 2,45,000.
The facts are as follows.
The partnership firm,
known as the Marwari Brothers, was formed on the
29th of February 1936. The partners consisted of
two groups called the Bettia Group and the Padrauna
Group. The Padrauna Group consisted of (1) Kedarnath Khetan and (2) a firm called Surajmal. Thef;!e
two were the plaintiffs in the suit. Kedarnath was
on~ of the partners of the Surajmal firm. The Bettia
Group consisted of (1) Gobardhan Das (2) Jainarain
Ram Lundia (3) Badri Prasad and (4) Bisheshwar
Nath. On Bisheshwar Nath's death his son Madan
Lal Jhunjhunwalla stepped into his shoes. These persons were the defendants.
The Marwari Brothers :Firm was formed for the
purpose of promoting a company for starting a sugar
mill in Cbamparan and for securing the managing
agency of the company for itself for a period of ninety
years. This was done. The capital of the company
consisted of Rs. 8,00,000 divided into 800 shares of
1956
J ai Narain Ram
Lundia
v.
KedarNath
Khetan and others
Bose}.
64
SUPREME COURT REPORTS
(1956]
Rs.1,000 each. The shares were distributed as follows.
In the Bettia Group Gobardhan Das and his brother
Badri Prasad had 100 shares; Jainarain had 150 and
Madan Lal had 100. The Bettia Group thus had 350
shares between them. The other group (Padrauna)
held the remaining 450 shares.
About five years later the two sets of partners fell
out and, as a result, the Bettia Group agreed, on
1-1-1941, to sell a certain number of their shares in the
Ganga Devi Sugar Mills Limited to the Padrauna
Group along with a certain share in the Marwari
Brothers firm. The exact number of shares agreed to
be sold and the extent of the share in the firm was a
matter of dispute but that does not concern us at this
stage because we are only concerned with the final
result embodied in the decree now under execution.
T}le Padrauna Group sued for specific performance
and the dispute was carried as far-as the Federal
Court. That Court affirmed the decree of the Calcutta
High Court on 6-5-1949. The substance of the decree
was this:
I. "It is declared that upon payment and or
tender to the defendants-appellants Jainarain Ram
Lundia and Madan Lal Jhunjhunwala of the sum of
Rs. 2,45,000 ........ with interest
thereon ........ by the
plaintiffs, the plaintiffs are entitled to 250 shares
belonging to the said defendants in the Ganga Devi
Sugar Mills Limited and five aunasshare belonging to
them in the Marwari Brothers ........ and to all dividends
and profits in respect thereof with effect from
1-2-1941.. ...... "
2. "And it is further ordered and decreed that
against payment or tender by the plaintiffs to the
said defendants ........ of the said sum of Rs. 2,45,000
with interest as aforesaid the said defendants-appellants and all proper parties do execute in favour of
the plaintiffs proper deed or deeds of transfer or
assignment of the said 250 shares in the Ganga Devi
Sugar Mills Limited and the said five annas share in
the Marwari Brothers ........ "
This was in slight variation of the first Court's
decree. The exact variation does not matter. All
' -
._,
-
•
S.C.R.
SUPREME COURT REPORTS
65
that it is necessary to note is that the plaintiffs (that
1956
is, the Padrauna Group) tendered the money some
time after the first Court's decree and before the Jai N;,:,7~7aRam
Calcutta High Court's decree. The tender was not
v.
accepted as the defendants (the Bettia Group) had
KedarNath
appealed. It is admitted that there was no second Khetan and others
tender after the High Court's decree.
-
After the Federal Court had settled the matter,
Bose J.
one of the defendants, J ainarain Ram Lundia, applied
to the Calcutta High Court for execution.
The
deotee was transferred to the Subordinate Judge,
Motihari, and the execution proceedings started there
on 25-1-1951. One of the plaintiffs, Kedarnath
Khetan, filed an objection petition on 20-3-1951.
That is the objection we are concerned with. Among
other things, one of the objections was that the defendants were not in a position to implement the
conditions imposed on them by the decree because
the Marwari Brothers firm was dissolved by agreement between the parties before the Federal Court's
decree and was no longer in existence. The present
appeal turns almost entirely on that fact and on the
consequences that flow from it.
The first Court, that is, the Subordinate Judge's
Court at Motihari to whom the decree had been
transferred, declined to go into this holding that it
had no jurisdiction as a transferee Court.
The plaintiff Kedarnath appealed to the High
Court and succeeded. The High Court held that the
transferee Court had jurisdiction, that the Marwari
Brothers had been dissolved and that because of that
the defendants could not execute the decree.
The defendants appealed here.
We will first consider the question of fact, namely,
whether the Marwari Brothers was still in existence
as a firm at the date of the execution application.
On this point we agree with the High Court that it
was not, for the following reasons.
The plaintiff Kedarnath asserted in his objection
petition that the firm had been dissolved by agreement between the parties "including the plaintiffs
and the defendants". This fact was not denied by
9
1956
J ai Narain Ram
Lundi a
v.
KedarNath
Khetan and others
Bose}.
66
SUPREME COURT REPORTS
[1956]
the defendant Jainarain Ram Lundia in his rejoinder
though the fact was specifically alleged to be within
his personal knowledge. Even if he did not know
whether the firm had been dissolved or not (a fact
which cannot be the case for reasons that we shall
give later) he was certainly in a position to admit or
deny whether the fact was within his personal knowledge. His silence can therefore only have one meaning.
·
The defendant's learned counsel contended before
us that the fact had been denied by implication because Kedarnath stated that his side was, and had
always been, ready to perform their part of the decree. Counsel argued that as the plaintiffs contended
that performance was not possible after the dissolution of the M.arwari Brothers firm this meant that
the firm was still in existence.
We reject this contention and remark in passing that this is inconsistent
with another argument which was also urged in this
Court, namely that the fact of dissolution was no bar
to performance on the defendant's part.
Quite apart from the language of the rejoinder, the
defendant Jainarain said in paragraph 15 of his application dated 12-7-1954 made to the High Court for
leave to appeal here that
"the said Marwari Brothers was in existence on
the date of the said conveyance, namely 14th
September 1950, and died a natural death on the conveyance of the Ganga Devi Sugar Mills. to North
Bihar Sugar Mills".
This is a clear admission that the firm was dissolved,
at any rate, on 14-9-1950.
The plaintiff's contention
is that it was dissolved much earlier but whether that
was so or not will make no difference to this appeal
because 14-9-1950 is also before the date of the application for execution.
The defendant's learned counsel tried to explain
this away also.
He said that the defendant did not
mean that the firm was dissolved on that date but
that as the only purpose for which the firm existed,
namely, the managing agency of the Ganga Devi
Sugar Mills, had gone the firm could no longer function.
' -
)
S.C.R.
SUPREME COURT REPORTS
67
In .order to understand this, some further facts will
1956
be necessary. While the plaintiff's appeal was being Jai Narain Ram
heard in the High Court, the defendants made an
Lundia
application to that Court on 14-4-1954 asking for
v.
permission to adduce further evidence in the shape of
Kedar Nath
a sale deed dated 14-9-1950.
The defendant con- Khetan and others
tended that he had only "recently" come to know
that the Ganga Devi Sugar Mills had sold all its land,
machinery, etc. to the North Bihar Sugar Mills on
14-9-1950. This terminated the managing agency, and
as the only business of the firm was this managing
agency and as that was the only purpose for which
the firm was formed, it was no longer able to function. But he said that this deed would show conclusively that the firm was in existence on that date.
The High Court refused to accept this document because it considered that the only ground on which
additional evidence can be admitted in appeal is when
the Court is unable to pronounce judgment on the
material already before it; as that was not the case
here it rejected the document.
We need not decide whether there is any conflict
of view between the Privy Council decisions in
Kessowji Issur v. G.I.P. Rly.(1) and Parsotim v. Lal
Mohar(g) on the one hand and Indrajit Pratap Sahi v.
Amar Singh(3) on the other because, even if this
evidence were to be admitted and were to be accepted
as true, there would still be the defendant's admission in the High Court that the firm stood dissolved
at least on 14-9-1950. We are not able to construe
the statement in any other way. The plaintiff says
that the dissolution was much earlier and that the
firm mentioned in the sale deed now sought to be filed
was not the same firm but another firm of the same
name, but even ifthe defendant's version be accepted
the fact still remains that even according to his
statement there was a dissolution before his application for execution and that therefore the defendants
were not in a position to assign their five annas share
(1) [1907] L.R. 84 I.A. 115, 122.
(2) [1981] L.R. 58 I.A. 254.
(3) [1928] L.R. 50 I.A. 183, 190, 191.
Bose].
68
SUPREME COURT REPORTS
(1956]
1956
in the Marwari Brothers firm.
We now have to consider the effect of that.
Jai Narain Ram
Lunaia
Much of the argument about this revolved round
v.
the question whether the equitable rules that obtain
Kedar Nath
before decree in a suit for specific performance conKheta" and others tinue at the stage of execution. It is not necessary
-
for us to go into that here because the position in the
Bose].
present case is much simpler. When a decree imposes
obligations on both sides which are so conditioned
that performance by one is conditional on performance bv the other execution will not be ordered unless the· party seeking execution not only offers to
perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do
so. Any other rule would have the effect of varying
the conditions of the decree: a thing that an executing Court cannot do. There may of course be decrees
where the obligations imposed on each side are
distinct and severable and in such a case each party
might well be left to its own execution. But when
the obligations are reciprocal and are interlinked so
that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the
directions in the decree and to go behind them which,
of course, an executing Court cannot do.
The only
question therefore is whether the decree in the present
case is of this nature. We are clear that it is.
The relevant part of the decree has already been
quoted. It directs that
"against payment or tender by the plaintiffs ....
the said defendants ... do execute in favour of the
plaintiffs proper deed or deeds of transfer of .... five
annas share in the Marwari Brothers .... "
This is not a case of two independent and severable
directions in the same decree but of one set of reciprocal conditions indissolubly linked together so that
they cannot exist without each other. The fact that
it is a decree for specific performance where the decree
itself cannot be given unless the side seeking performance is ready and willing to perform his side of
the bargain and is in a position to do Bo, only
strengthens the conclusion that that was the meaning
•
I
S.C.R.
SUPREME COURT REPORTS
69
and intendment of the language used.
But the
1996
Principle on which we are founding is not confined to J ai Narain Ram
cases of specific performance. It will apply whenever
Lundia
a decree is so conditioned that the right of one party
v.
to seek performance from the other is conditional on
Kedar Nath
his readiness and ability to perform his own obliga- Khetan and others
tions. The reason is, as we have explained, that to
hold otherwise would be to permit an executing Court
to go behind the decree and vary its terms by splitting up what was fashioned as an indivisible whole
into distinct and divisible parts having separate and
severable existence without any interrelation between
them just as if they had been separate decrees in
separate and distinct suits.
Fry on Specific Performance was quoted to us (6th
edition, Chapter IV, pages 546 onwards) where the
learned author states that relief can often be obtained
after judgment along much the same lines as before:
thus a party to a contract may, in a proper case,
apply for rescission of the contract and so forth. It
was urged by the other side that even if that can be
done it can only be done by the Court which passed
the decree and not in execution. We do not intend
to examine this because even if these remedies also
exist, provided application is made to the proper
Court, it does not affect the basic principle in execution that the executing Court must take the decree as
it stands and cannot go behind it. If the decree says
that on payment being made some definite and specific
thing is to be given to the other side, the executing
Court cannot alter that and allow something else
to be substituted for the thing ordered to be given.
The learned counsel for the defendant-appellant
contended that even if the Marwari Brothers had
ceased to exist as a firm the plaintiff was still
entitled to a five annas share in its assets on dissolution. But a five annas share in the assets of a dissolved firm which has ceased to exist is a very different thing from a five annas share in a going partnership concern; and to permit this substitution
in the decree would be to alter it in a very material
particular. The defendant may or may not have the
Bose}.
1956
J ai Narain Ram
Lundia
v.
KedarNath
/(hetan and others
Bose J.
70
SUPREME COURT REPORTS
(1956]
right to ask the Court which passed the decree to
vary it in that way but he can certainly not ask the
executing Court to do so.
The .decree must either be
executed as it stands in one of the ways allowed by
law or not at all.
In the High Court, and also before us, much was
made of the fact that the plaintiff had not re-tendered the money after the decree was varied by the
High 8ourt and it was argued that that preclnded
him from contesting the defendant's right to attach
his property under Order XXI, rule 32(1), of the
Civil Procedure Code.
The remedy provided in Order
XXI, rule 32(1), is, of course, one of the remedies
available in execution of a decree for specific performance but it can only be used by a person who is
entitled to execute the decree, and if, by reason of
his own incapacity to perform his part, he is precluded from seeking execution, Order XXI, rule 32(1),
cannot apply.
The only question that remains is whether the
executing Court can consider whether the defendant
is in a position to perform his part of the decree. But
of course it can. If the executing Court cannot consider this question who can?
The executing Court
has to see that the defendant gives the plaintiff the
very thing that the decree directs and not something
else, so if there is any dispute about its identity or
substance nobody but the Court executing the decree
can determine it.
It is a matter distinctly relating
to the execution, discharge and satisfaction of the
decree and so under section 4 7 of the Ci vii Procedure
Code, it can only be determined by the Court executing
the decree. And as for the first Court's conclusion
that it could not decide these matters because it was
not the Court that passed the decree, it is enough to
say, as the High Court did, that section 42 of the Code
expressly gives the Court executing a decree sent to it
the same powers in executing such decree as if it had
been passed by itself.
The next point urged by the appellant was that as
the plaintiff did not raise the present objection
before the Federal Court when it passed its decree he
- ,
S.C.R.
SUPREME COURT REPORTS
71
is precluded from doing so now. It is true this would
1956
have been a good ground for resisting a decree for Jai Narain Ram
specific performance but is no answer to the objection
Lundia
to execution. The defendant undertook to perform
v.
his part when the decree was passed and he must
KedarNath
make good that undertaking before he can seek execu- Khetan and others
tion because the decree, in view of its language and
intendment, must either be executed as a whole or
not at all; it cannot be split up into different and uncorrelated parts and be executed unilaterally. It
may be observed in passing that it was as much the
duty of the defendant to seek modification of the
contract by the Court which passed the decree, or
modification of the terms of the decree later if he
did not know these facts at the time, as he says, it was
of the plaintiff. The fact remains that the decree
was passed in these terms and it must either be
executed as it stands or not at all unless the Court
which passed it alters or modifies it.
Then it was argued that this objection to execution
should have been taken by the plaintiff in the Calcutta High Court when the defendant asked for
transfer of the decree to Motihari and that as that
was not done it is too late now. But here also the
answer is the same. The only question before the
Calcutta High Court on the application made to it
was whether the decree should be transferred or not.
Whether the plaintiff might or could have taken the
objection in the High Court is beside the point because it is evident that he need not have done so on
the only issue which the application for transfer
raised, namely, whether the decree should be transferred or not; at best it could only be said that the
plaintiff had a choice of two forums. If the appellant's
contention is pushed to its logical conclusion it would
mean that whenever a decree is transferred all objection to execution must cease unless the order of the
Court directing the transfer expressly enumerates the
issues that the transferring Court is at liberty to determine. In our opinion section 42 of the Civil Procedure Code is a complete answer to this contention.
The appeal fails and is dismissed with costs.
BoseJ.