Case: Jai Narain Ram Lundia Vs. Kedar Nath Khetan And Others

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.21. 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 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.22. 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 Court and it was argued that that precluded him from contesting the defendants right to attach his property under 0,21, R. 32 (1), Civil P. C. The remedy provided in 0.21, R. 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, O.21, R. 32 (1), cannot apply.23. 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 S. 47, Civil P. C., it can only be determined by the Court executing the decree. And as for the first Courts 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 S. 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.24. 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 is precluded from doing so now. It is true this would have been a good ground for resisting a decree for specific performance but is no answer to the objection to execution. The defendant undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution 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 fact 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.25. 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. But normally this sort of question which involves an enquiry into fact would not be tried by an appellate Court. It would be more appropriate for an original Court to which the decree is transferred for execution to enquire into it. In any case, if the appellants 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 S. 42, Civil P. C. is a complete answer to this contention.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]On this point we agree with the High Court that it was not, for the followingreject 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 defnedantsis a clear admission that the firm was dissolved, at any rate onplaintiffs contention is that it was dissolved muchearlier 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.We need not decide whether there is any conflict of view between the Privy Council decisions in - Kessowji Issur v. G. I. P. Rly.. 34 Ind App 115 at p. 122 (PC) (A) and - Parsotim v. Lal Mohar, 1931 PC 143   (AIR V 18) (PC) (B), on the one hand and - Indrajit Paratap Sahi v. Amar Singh, 1923 PC 128   (AIR V 10) at pp. 134, 135 (PC) (C), on the other because, even if this evidence were to be admitted and were to be accepted as true, there would still be the defendants 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 otheris not necessary for us to go into that here because the position in the present case is mucha decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by 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 cannotmay 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 cannotthe principle on which we are founding is not confined to cases of specific performance. It will apply whenever a decree is so conditioned that the right of one party to seek performance from the other is conditional on his readiness and ability to perform his ownreason 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 distinctdo 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 behindthe 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 bea 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 materialis true this would have been a good ground for resisting a decree for specific performance but is no answer to the objection todefendant undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution 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 executedmay 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 fact 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 modifiesnormally this sort of question which involves an enquiry into fact would not be tried by an appellate Court. It would be more appropriate for an original Court to which the decree is transferred for execution to enquire intoany case, if the appellants 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 S. 42, Civil P. C. is a complete answer to this contention.