JUDGMENT [ENTITY], J.
1. This First appeal, presented under [SECTION] of the [ACT] (for short the 'Code') is directed against the judgment and decree dated 20-4-1976 rendered by the Addl. Judge, Mandsaur Camp Garoth to the Court of the District Judge, Mandsaur in [CASE NUMBER] (old No. 8 -B/ 71), thereby granting the relief of specific performance of the contract as pleaded in the plaint.
2. Briefly stated, the facts of the case are that survey Nos. 1280 and 1281 area 1.021 acres, owned by the appellant-defendant, are situated in village Shamgarh, District Mandsaur. Excluding the portion of this land i.e. 60 feet in width on the Southern. side near the fencing the remaining portion of these survey numbers was contracted to be sold on a consideration of Rs. 11,000/- on 13-9-1963. This contract was preceded by earlier agreements on 30-9-1961,19-10-1961, 6-11-1961 and 29-5-1962. Out of this consideration, the sum of Rs. 6,000/- was paid to the defendant whereas the balance consideration of Rs. 5,000/- was agreed to be paid between the period 1-1-1964 and 1 -5-1964 in five instalments of Rs. 1,000/- each. The possession, subsequent to the contract dated 13-9-1963 is with the respondent. It was pleaded that sum of Rs. 4,500/- was paid by the respondent to the appellant through his agent [ENTITY] and the balance sum of Rs. 500/- was agreed to be paid at the time of registration of the document. On demand, the appellant failed to execute the sale-deed whereas the respondent was always ready and willing to perform his part of the contract. On non-compliance, the respondent filed the suit claiming specific performance of the contract dated 13-9-1963 after issuing the notice and receiving the intimation of refusal on 7 -10-1968. The appellant resisted the claim on number of grounds and asserted that the respondent committed the breach of the contract and was not even ready and willing to perform his part of the contract. The appellant, therefore, prayed for dismissal of the suit. On evaluation of the evidence, the trial Court decreed the suit for specific performance of the contract and directed the appellant to execute the sale-deed on receiving the balance consideration of Rs. 500/-. Aggrieved by this judgment and decree, the appellant-defendant has preferred this first appeal.
3. As noted above, this is defendant's appeal. He is aggrieved by the decree of specific performance of the contract dated 139-1963 (Ex.P/3) which was preceded by the agreements dated 30-9-1961, 19-10-1961, 6-11-1961 and 29-5-1962, on consideration of Rs. 11,000/- out of which sum of Rs. 10,500A is alleged to have been paid prior to the institution of the suit.
4. Shri [ENTITY], learned senior counsel with Shri [ENTITY], has impugned the judgment and decree on grounds, prodigious in number, as categorised below-
(a) The suit contract is hit by [SECTION] of the [ACT] as being contrary to law and is thus, unenforceable. It is luculent that transfer was at the relevant time, i.e. 13-9-1963, forbidden by law via [SECTION] of the [ACT]. Although this constraint was deleted subsequently by amendment on 23-4-1964, yet this could not validate the invalidity. Omission of [SECTION], requiring the [ENTITY] to own not less than ten acres of unirrigated land, by [SECTION] of the [ACT], was inconsequential as the suit still remained one for the enforcement of the contract executed at a time when transfer had stood prohibited. Reliance was placed on [PRECEDENT]. The full text of the judgment is made available.
(b) The trial Court erred in holding that the respondent was 'ready and willing' to perform his part of the contract. The respondent had clearly flouted the term as regards the schedule of payment of the balance consideration. He did not pay the sum of Rs. 5,000/- as agreed and elvishly showed that Rs. 4,500/- were paid via one Shri [ENTITY] - mode unconsented - and the sum of Rs. 500/- still was the outstanding amount. The alleged oral agreement about such remittances was hit by [SECTION] of the [ACT] and was unacceptable on alleged facts. Even particulars, despite demand, were not furnished and were allowed to remain esoteric to spring surprise at the trial.
(c) There is violation of the term rendering the contract incapable of being enforced as is clear from the departure in mode of payment. Payment to Shri [ENTITY], is untrue, imprimis and even if true, cannot be construed to be payment to the appellant towards the suit-contract. False plea of delivery of possession, contrary to Ex.P/3, was set up.
(d) The suit contract is void for uncertainty as the periphery came under serious dispute.
(e) The suit is basred by law of limitation. The last date of final payment is said to be fixed on 1-5-1964. This would be the date of commencement for cause of action in terms of [SECTION] of the [ACT]. The suit filed on 4-10-1971, much after period of three years, was thus, hopelessly barred by time.
(f) The findings are perverse and unsupportable from evidence. Thus, on all counts, the decree deserved to be subverted.
(g) The interlocutory application deserved to be rejected.
5. Shri [ENTITY], learned senior counsel with Shri [ENTITY] for the respondent Countered the aforesaid submissions and supported the decree. He opposed the contentions one by one as under-
(a) After deletion of the fetter on 23-4-1964, the suit contract became legally enforceable and the prohibition would be deemed to be non-existent even on the dates of transactions and final contract on 13-9-1963. The eclipse had vanished before 1-5-1964, the last date fixed for payment and the contract was made enforceable only after 1 - 5 -1964. On 1 - 5 -1964, there was no such prohibition on the statute. Reliance was placed on [PRECEDENT]. It is not the date of contract which would determine applicability of [SECTION] of the Code, but date of transfer i.e. sale. Contract by itself created no interest in or charge on the property. Shelter was also sought on one unreported judgment, referred in the later part, of Allahabad High Court and [PRECEDENT], [PRECEDENT], and [PRECEDENT], [PRECEDENT]
(b) The readiness and willingness are pleaded and proved. PW-2 [ENTITY] clearly stated that he received the payments on behalf of the appellant. The agency is cogently established. The appellant had altered the direction desiring - That he would receive Rs. 500/- at the time of registration (Para 6 of PW 1). Hence, there was total compliance and evident readiness and willingness. Shri [ENTITY] was a middle man, and operated as agent of the appellant. Recourse can be taken to [SECTION] of the [ACT]. Parties were free to agree to substitute a new contract or to rescind or alter it. The mode of payment was thus, altered permitting dispensation of initial mode of direct payment. Alternatively, the contract was modified ([PRECEDENT]).
(c) The terms are not breached in any manner. Payments were made to [ENTITY] in strict compliance of instructions of the appellant (Para 6 of PW-1). The possession was delivered pursuant to the agreement.
(d) There is no vagueness, obscurity or uncertainty. S. Nos. are clear, Area is clear. The portion excepted and excluded (left from wire fencing) is clear.
(e) The suit is not barred by time. In case of delay in payments, interest at 12% was chargeable. The performance was refused on 7-10-1968 vide Ex.P/7. The suit was filed within three years from the date of refusal, in terms of [SECTION] of [ACT], on 4-10-1971.
(f) The findings are on firm foundation and merit to be sustained. The discretion has been exercised by the Trial Court on sound and reasonable basis.
(g) The [CASE NUMBER] deserved to be allowed.
6. I shall deal with these rival contentions with reference to the evidence led by the parties at the trial.
7. Before doing so, right at the threshold, without probing the matter, I consider it apt to make a reference to the requirements prescribed in [SECTION] and [SECTION] of the First Schedule in the Code Form 47 -Para 3 requires statement as under -
"The plaintiff has been and still is ready and willing Specifically to perform the agreement on his part of which the defendant has had notice."
Form [SECTION] -Para 2 demands averment as under -
"On the day of 19 the plaintiff tendered rupees to the defendant and demanded transfer of the said property by sufficient instrument."
The importance of these Forms has been highlighted by the Supreme Court in [ENTITY] v. Joseph Akey and Ors., 1969 (2) SCC 539, in the following words:-
"A suit for specific performance has to conform to the requirements prescribed in [SECTION] and [SECTION] in the [ACT]. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so."
-x- -x- -x-
8. Now is the time to come to the facts of the case. As to the point (a) above, it is noticed that Ex.P/3 dated 13-9-1963 is the agreement of which specific performance is sought and decreed by the trial Court. As may be noticed, it is not made enforceable till 1-5-1964. In other words, albeit it is executed on 13-9-1963. It is not ripe till 1-5-1964. The prohibition was on the statute on 13-9-1963 but not on 1-5-1964 as it was omitted on 23-4-1964. What is thus, sought to be implemented is the agreement fed and finalised on 1 -5-1964. Shri [ENTITY] has placed reliance on [PRECEDENT] decided on 22-12-1976 (supra) wherein it was held as under (quoted from full text) -
"The plaintiff filed the present suit for the enforcement of the agreement (Ex.P/1) and as such, it has to be seen when that agreement was entered into between the parties, was it permissible? After all the right to the plaintiff would flow only on the basis of that agreement. If that agreement was void, it would not make any difference in view of the wordings of [SECTION] of the Code, which relate to a transfer. In the instant case when the agreement (Ex.P/1) was entered into between the parties [SECTION] clearly prohibited a [ENTITY] to transfer an area from his holding which would reduce the area of that holding below 5 acres of irrigated or 10 acres of unirrigated lands. Here, it was not disputed that the total holding in the hands of the joint family were 6.18 acres in area out of which 3.25 acres were alienated, reducing the holding below 10 acres. Therefore, the agreement (Ex.P/1) was contrary to the provisions of [SECTION] of the Code and as such was void in terms of [SECTION] of the [ACT]. In the circumstances the plaintiff was not entitled to obtain a decree for specific performance of contract by virtue of the provisions of [SECTION] of the [ACT]. Differing from the lower appellate Court I hold that the plaintiff's suit was wrongly decreed by that Court."
-x- -x- -x-
Shri [ENTITY], on the other hand argued that after removal of the rider, the agreement became valid and enforceable. In [CASE NUMBER] (supra) it is laid down that-
"In order to attract the applicability of the restriction, what is important is the fact of transfer and not how the transfer has been brought about-whether by virtue of a contract made before or after the date of the enforcement of the Act prohibiting such transfer. In other words, it is not a case of retrospective operation of the enactment because the provisions undoubtedly do not apply to transfer which had already taken place before the enforcement of the Act, but they do not affect the existing rights of sales and purchase, whether those rights arise under a contract made before or after coming into force of the provision of [SECTION]. It is not the date of the contract, which will determine the applicability of the provisions of [SECTION] of the Code, but the date of the sale taking place."
-x- -x- -x-
9. There are at least two features which tilt the balance towards preference of the adherence to the authority cited by Shri [ENTITY].
One - The authority cited by Shri [ENTITY] is distinguishable on facts. In that case entire consideration was paid till 9-5-1963 i.e. prior to the deletion of the fetter on 23-4-1964 and as such sale was complete in all respects and what had remained was only to obtain sufficient instrument evidencing legal transfer. It is on these facts that the transaction, where entire consideration was paid at the time when prohibition was operative, was held to be void and unenforceable. In the case on hand, the consideration was made payable till 1-5-1964 after the date of omission of the prohibition and possession was to be delivered only on execution of sale-deed. In my view, the suit agreement in these peculiar facts cannot be construed as being hit by [SECTION] of the [ACT] or [SECTION] of the [ACT]. In [PRECEDENT], this Court, in a case entailing specific performance of the suit-agreement, held that "relevant date is the date of the suit when the plaintiff-appellant sought enforcement of the impugned agreement for sale through Court" and not the date of entering into the agreement. Admittedly, on the date of the suit, the suit-agreement was not hit by any provision of law. Similarly, in [CASE NUMBER] (supra), it is held that material date is the date of transfer and not the date of contract. Reliance is also placed on unreported judgment of Allahabad High Court,- [PRECEDENT] decided on 8-5-1979- copy filed on record - in support of this contention.
Two -In [PRECEDENT], the Apex Court enunciated the law that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with, current realities, the Court must take cautious cognizance of subsequent events and developments. In this decision, a reference was made to [ENTITY]'s case [PRECEDENT], wherein the rule adopted by the Supreme Court of the United States in Patterson v. State of Alabama, 1934 294 US 600, as quoted below, was accepted-
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law which has supervened since the judgment was entered."
It is, thus, obvious that change in law as held by Apex Court was required to be noticed for making resolution of the implex issue just and meaningful. In the case on hand, I find that further examination is unnecessary in the face of dissmiliarity of facts as noted above on one hand and distinguishing feature on the other, Luculently enough, one pertained to procurement of document whereas the other related to frustration of contract on arrival of restriction through change in law.
10. In this view of the position, agreeing with the conclusion of the trial Court on relevant issue No. 2, I hold that the suit agreement (Ex.P/3) was not void and was not incapable of being sued upon. The contention of Shri [ENTITY] is thus, found to be non-meritorious and is rejected.
11. Next I take up the plea of bar of limitation i.e. point (e) above. The question is whether first part of [SECTION] would apply or the second part of it is attracted in this case. [SECTION] provides as under-
"54 - For specific performance Three years The date fixed for the of a Contract performance or if no such date is fixed, when the plaintiff has notice that performance is refused."
The simple question is as to when the cause of action should be deemed to have commenced. Ex.P/3 does not contain any date for the performance. It embodies the date of payment, not the date of performance. Even there also the consequence, in case of non-payment of instalments, is the liability of payment of interest at the rate of twelve annas per cent on the sum of Rs. 5,000/-. This implies that time was not made to be the essence of contract and delay was condonable on interest. Moreover, the appellant sent a post card dated 24-4-1965 (Ex.P/5) to the respondent that it was not possible to go in for the documentation at that stage. Two things emerged from this. One the agreement was treated as alive. Two - There was no categorical refusal to perform. It seemed to be a question of postponing and buying time. The emphatic refusal was conveyed on 7-10-1968 vide notice Ex.P/7. Hence, this case was covered by the Second part of the aforesaid Article. The suit laid on 4-10-1971, within three years from the date of having notice of refusal, is thus, within limitation and not barred at all in terms of [SECTION], [SECTION] of the Code. Such a refusal is envisaged even by [SECTION] and [SECTION] referred to above. Power was reserved to cancel the agreement in case of default. This meant assurance of the continuity of life of the agreement until cancelled explicitly.
12. As to the plea of uncertainty as noted in point (d) above, I find that Ex.P/3 does not contain any tenebrosity. It is thus, not void for uncertainty.
13. The crucial questions falling for consideration as surviving and noted in (b) and (c) above, are:-
(a) Whether instalments have not been paid as agreed and if so whether this constituted violation of terms and non-performance of the part as imposed on the respondent?
(b) Whether the respondent was ready and willing as required under the law?
14. These twin questions can conveniently be considered together Ex.P/3 contains the recital as under-
'ks"k fder vkils fd'rksa esa gksuk r; dh gS ;fn fd'rs le; ij vnk ugha dh rks lkbZ esa fy;s rhu gtkj :i;s eSa vkidks okfil ugha d:xk] uqdlkuh isVs j[k ywxk ,oa lkSnk dSfUly djus dk eq>s iwjk gDd gksxkA fd'rs 'ks"k 5]999@& dh uhps eqtc vnk djuk gksxh& 1]000 :- ,d gtkj :i;s rk- 1&1&1964 dks 1]000 :i;k 1&2&1964 dks 1]000 :i;k 1&3&1964 dks 1]000 :i;k 1&4&1964 dks 1]000 :i;k 1&5&1964 dks The agreement, in acceptance of bilateral obligations, has been signed by both the parties.
15. Ex.P/3 does not evidence (a) : that the agreement was prepared or executed at the residence of Shri [ENTITY] (PW-2) or (b) : that PW-2 was the middle-man between the parties in making the transaction or (c): that PW-2 could act as an agent of the appellant or (d): that PW-2 was empowered to receive instalments for and on behalf of the appellant and or (e): that any payment so made shall be construed to be made to the appellant in discharge of the obligations of the suit-agreement. The averments made in paras 8 and 9 of the plaint are very vague.
16. PW-1 [ENTITY] (respondent-plaintiff) deposed about earlier agreements, marked as Exs.P/1, P/2 and Ex.P/4. He stated that all agreements, including Ex.P/3, were made in the house of Shri [ENTITY] (PW-2) and through his mediation. He also pledged his oath to say that right at that time it was stipulated that the instalments could be deposited with PW-2 as the appellant-defendant would be away due to service. -He further stated that he deposited the sum of Rs. 4,500/- with PW-2 in compliance of the stipulated arrangement and that in 64, the appellant had instructed him to retain Rs. 500/- for being paid at the time of registration of the sale-deed. He said that he was ready and willing-and still is ready and willing to obtain sufficient instrument on paying balance consideration of Rs. 500/-. The possession was delivered at the time of agreement. These assertions are categorically disputed in cross-examination. PW-2 [ENTITY], ,whose interest was suggested in cross-examination of PW-1 that he intended to install factory in partnership on the disputed land, came to support PW-1. The hostility of PW-2 against the appellant is Iuculent when he vomited out the answer that the appellant has sued him (para 7). It was suggested that he perjured because of hostility generated as a result of decree obtained by the appellant against him. DW-4 [ENTITY] denied the assertions and deposed about violation of terms and non-payment of the instalments. DW-2 [ENTITY] spoke about the financial incapability of the respondent.
17. I am not satisfied about the plea of 'novation'. It is associated with infirmities - galore. One : Plea of protective umbrella of novation is not permissible in the absence of 'mutuality'. It has to be pleaded specifically and on contest, has to be proved cogently. It cannot be altered unilaterally. In [PRECEDENT] it is held that -
"It is extremely doubtful if a new rule can bind old Government servants without their consent, because one party cannot unilaterally alter the terms of contract or the conditions of service."
-x- -x- x-
The respondent was under obligation to plead and prove' 'animus Contrahendi" clearly so as to establish existence of a collateral and legal contract in variation of initial term. Two .It is not pleaded specifically. Three /The evidence furnished by PW-2 Shri [ENTITY] did not inspire confidence and carried the insignia that it was apocryphal. Four.-The novation of written-agreement by oral agreement is ex facie hit by the bar enacted under [SECTION] of the [ACT]. It is not some thing on which document was silent or which was not inconsistent with initial terms. In the result, this plea must suffer rejection both on facts (unproved) and in Law (unacceptable). The 'modification' is also not proved.
18. I have thus, scrutinised the evidence and position of law carefully and cautiously. The theory of payment of Rs. 4,500/- from 6-1-1964 to 7-5-1964 to PW-2 [ENTITY] and crediting of the same in the account of the appellant is held to be meretricious. The self-serving entries are inconsequential. Particulars were withheld despite demand. And concoction seems to have been engineered as part of evil design. As regards point (g) above, [CASE NUMBER] is considered and rejected as it did not improve the case of the respondent due to non-proof of readiness and willingness.
19. The Court is required to analyse the document and to do justice. In 1956 Lord [ENTITY] expressed himself in the following words:
"their actual persons should be allowed to rest in Peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the Court itself. : see [PRECEDENT]."
-x- -x- -x-
20. The Full Bench of this Court in [PRECEDENT], [PRECEDENT]., after surveying the law on the topic, held that-
"It has been held that when a statute prescribes a particular mode or manner in which a thing has to be done, it must be done in that manner or not at all as other modes are excluded by implication."
21. If this is the position with regard to a statute then some analogy can be applied to documents as well. The stand taken by the respondent, is obviously not in accord with the spirit of Ex.P/3 and travels beyond what was agreed upon and documented. The oral term or arrangement as asserted about mode and manner of payment affects the warp and woof of the written-document Ex.P/3 and remains unproved. This stand, on cautious scrutiny of evidence is found to be untrue and unbelievable, PW-1 and PW-2 do not inspire confidence. Form \[SECTION], as referred to above, also requires a statement that the amount was "tendered" to the other side. It does not envisage the tender to third person like PW-2. In view of the estimate and evaluation of evidence, and consequential conclusion about untruthfulness, it was even not very material to advent to legal position.
22. This type of mode and manner must then be held to be excluded. In [PRECEDENT], it is held that-
"In certain circumstances once a party to a contract has repudiated a contract, it is not necessary for the other party to tender the amount payable under the contract in the manner provided in the contract in order to successfully claim the specific performance of the contract. This does not, however mean that where one party to a contract repudiates the contract, the other party to contract who claims specific performance of the contract is absolved from his obligation to show that he was ready and willing to perform the contract. It is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance."
-x- -x- -x-
23. It is, thus, clearly laid down that in order to claim specific performance tender of the amount payable under the contract must be "in the manner provided in the contract". The respondent, on his own showing has not adhered to. this manner. The word "specific" when used for performance or allied matters like payment etc. must be given its natural meaning and consequently deviation or departure delivers dent almost beyond repair. This story thus, emaciated and enfeebled the cause and robbed it of its effulgence.
24. The introduction of false plea about discharge of certain obligations under the contract is also usually fatal in discretionary reliefs like specific performance, [PRECEDENT], [PRECEDENT]., may be referred.
25. It is thus, evident that requisite "readiness and willingness" has not been proved. The agency is not established. The terms are not complied with and are in fact violated. The respondent is thus, held to be guilty of the breach of the contract. The story is obviously not inbred and is clearly apocryphal. The authority reported in [PRECEDENT] (supra) is not attracted in this case and does not help the respondent.
26. [SECTION] of the [ACT] mandates that-
"No person shall be deprived of his property 'save by authority of law'."
27. The law, in these facts and circumstances of this case, is on the side of the appellant justifying refusal of the decree of specific performance. The hands of the respondent are trained in that -
(a) Amount, as agreed was not paid and the theory of agency with the aid and assistance of a hostile person (PW-2) was elvishly introduced to salvage the position and even part consideration (Rs. 500/-) was withheld on own showing. Such a 'novation' was 'structured' out of 'airy nothings' and lacked mutuality in any case.
(b) Possession of the property was taken in destruction of the terms embodied in the contract.
(c) Such acts, ex facie unnatural, yielded disentitlement for equitable relief.
The decree thus, offended even [SECTION] of the [ACT].
28. In the ultimate analysis, as regards the surviving point (f) above, it is held that findings are not on firm foundation and need to be dislodged and demolished. It is noticed that the trial Court has not exercised the discretion, vested in it, on sound and reasonable basis. It is not guided by judicial principles and needs to be corrected in this appellate jurisdiction. The respondent has not come with clean hands and seems to have spun the story which is found to be incredulous. The orchestration, arranged by PW-2 in close collusion with PW-1, lacked melody and at once appeared to be jarring to the intent of law. It is a case of tale told in grotesque manner.
29. There was no obfuscation of facts. The illation 'as nodus-free. None of the parties, in these peculiar facts, was required to undergo 'polygraph test' departure from the agreed term was one aspect who as the disbelief in such a warp and woof was another one. I saw no quandary. This is how the invertebrate decree was liable to be vacated. Facts and circumstances shed enough light to show the correct destination to this is which began its fedious journey in 1971 on the basis of the document born in 1963. The total period by now is 30 years. Procedural wrangle permitted the justice to cry in silence for long, far too long. Fortunately justice is delayed but not denied.
30. Ex consequent, for the reasons chronicled and circumstances categorised above, this appeal succeeds and is allowed. Accordingly, the judgment and decree of the trial Court are set aside. Instead, it is ordered and decreed-
(a) That the appellant shall refund the sum of Rs. 3,000/-, as agreed in Ex.P/3, to the respondent by payment or deposit in trial Court within a period of one month from today, under intimation to him.
(b) That the respondent, on payment or deposit of this amount, shall put the appellant in vacant possession of the property covered by Ex.P/3 within a period of 15 days thereafter on analogy of [SECTION] of the [ACT].
(c) The Appellant shall be liable to pay interest at the rate of 1% per month on this amount in case payment or deposit is made beyond the period of one month, from the date of default till compliance.
(d) The respondent shall be liable to pay mesne profits, determinable by the Trial Court in terms of [SECTION], [SECTION] of the Code and ordered in the shape of final decree in that behalf in pursuance of this direction, on failure to deliver possession within 15 days as directed above from the date of default till delivery of possession. No claim of standing crops shall be admissible in view of enjoyment of usufruct for such a long duration and that possession shall be delivered along with the standing crops, if in existence.
(e) Parties are leit to bear their own costs of this appeal as incurred. Counsel fee on each side shall, on Certification, be Rs. 1,500/-.
31. The appeal is thus, allowed in terms indicated above. Let a DECREE be draw up accordingly.
32. The record of the Court below is directed to be returned.