Case: Hungerford Investment Trust Limited (In Voluntar Vs. Haridas Mundhra &amp; Others

be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by detention in the civil prison, or by the attachment of his property or by both.(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced, by the attachment of the property of the corporation or, with the leave of the Court by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made, has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the costs of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree." 32. The execution of a decree for specific performance can only be in the manner prescribed by this rule; sub-rule (1) of the rule says that if a decree for specific performance is not obeyed, the decree is to be enforced by the detention of the party in default in the civil prison or by attachment of his property or by both. The detention in the civil prison of the party who failed to obey the decree and the attachment of his property are simply the means to compel him to obey the decree. That is made clear by sub-rule (3) which says that if the judgment-debtor has failed to obey the decree when the attachment has remained in force for one year, the property attached may be sold and out of the proceeds the decree-holder may be awarded such compensation as the Court thinks fit. Sub-rule (5) which provides that the Court may direct the act required to be done may be done by the decree-holder or some other person appointed by the Court can only refer to an act other than an act of payment of money. We do not think that the appellant could have executed the decree against Mundhra as a money decree and realised the purchase money from him. Therefore, if Mundhra refused to pay the purchase money, there was nothing which prevented the appellant from applying for rescission of the decree. 33. It was then contended that the attachments of the decree in suit No. 600 of 1961 by the creditors of Mundhra prevented him from tendering the purchase money to the appellant and take delivery of the shares as the attachments prevented him from obtaining satisfaction of the decree by paying the purchase money and obtaining delivery of the shares. In other words, the contention was that because of the attachments Mundhra could not have paid the purchase money to the appellant as that would have been in contravention of the orders of the Court attaching the decree. We do not think that there is any substance in this contention. If the creditors of Mundhra attached the decree and he was prevented from tendering the money because of the attachment, he has only to blame himself. The only question with which the Court is concerned is whether Mundhra has disabled himself from performing his part of the obligation under the decree. The inability to pay off the creditors was the proximate cause of the attachments and the responsibility for the same was that of Mundhra. The fact that the attachments prevented him from performing his part of the obligation under the decree or obtaining satisfaction thereof would not make him anytheless a defaulter, so far as the performance of his part of the obligation under the decree is concerned. Nor is there any substance in the contention of counsel for Mundhra that the attachment by Bank Hoffman of the 51 per cent. shares under the order of the District Judge of Delhi made it impossible for the appellant to deliver the shares to Mundhra, as the attachment order directed that the 51 per cent. shares should be produced before the Calcutta High Court for delivery to Mundhra against payment of the consideration mentioned in the decree in suit No. 600 of 1961. 34. We, therefore, allow the appeal and set aside the judgment under appeal and order the rescission of the decree for specific performance passed in suit No. 600 of 1961. We direct Shri K. B. Bose, Barrister, Member, Bar Library Club, Calcutta High Court, the receiver appointed in suit No. 2005 of 1965, and who was appointed as receiver of the shares by the proceedings, dated July 14, 1969, of Masud, J., in suit No. 600 of 1961, to produce the 2, 295 shares before this Court and give custody of the same to the Registrar of this Court. The Registrar will hand them over to the appellant.

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

Explanation:
1[ds]32. The execution of a decree for specific performance can only be in the manner prescribed by this rule; sub-rule (1) of the rule says that if a decree for specific performance is not obeyed, the decree is to be enforced by the detention of the party in default in the civil prison or by attachment of his property or by both. The detention in the civil prison of the party who failed to obey the decree and the attachment of his property are simply the means to compel him to obey the decree. That is made clear by sub-rule (3) which says that if the judgment-debtor has failed to obey the decree when the attachment has remained in force for one year, the property attached may be sold and out of the proceeds the decree-holder may be awarded such compensation as the Court thinks fit. Sub-rule (5) which provides that the Court may direct the act required to be done may be done by the decree-holder or some other person appointed by the Court can only refer to an act other than an act of payment of money. We do not think that the appellant could have executed the decree against Mundhra as a money decree and realised the purchase money from him. Therefore, if Mundhra refused to pay the purchase money, there was nothing which prevented the appellant from applying for rescission of the decree33. It was then contended that the attachments of the decree in suit No. 600 of 1961 by the creditors of Mundhra prevented him from tendering the purchase money to the appellant and take delivery of the shares as the attachments prevented him from obtaining satisfaction of the decree by paying the purchase money and obtaining delivery of the shares. In other words, the contention was that because of the attachments Mundhra could not have paid the purchase money to the appellant as that would have been in contravention of the orders of the Court attaching the decree. We do not think that there is any substance in this contention. If the creditors of Mundhra attached the decree and he was prevented from tendering the money because of the attachment, he has only to blame himself.The only question with which the Court is concerned is whether Mundhra has disabled himself from performing his part of the obligation under the decree.The inability to pay off the creditors was the proximate cause of the attachments and the responsibility for the same was that of Mundhra. The fact that the attachments prevented him from performing his part of the obligation under the decree or obtaining satisfaction thereof would not make him anytheless a defaulter, so far as the performance of his part of the obligation under the decree is concerned. Nor is there any substance in the contention of counsel for Mundhra that the attachment by Bank Hoffman of the 51 per cent. shares under the order of the District Judge of Delhi made it impossible for the appellant to deliver the shares to Mundhra, as the attachment order directed that the 51 per cent. shares should be produced before the Calcutta High Court for delivery to Mundhra against payment of the consideration mentioned in the decree in suit No. 600 of 196134. We, therefore, allow the appeal and set aside the judgment under appeal and order the rescission of the decree for specific performance passed in suit No. 600 of 1961. We direct Shri K. B. Bose, Barrister, Member, Bar Library Club, Calcutta High Court, the receiver appointed in suit No. 2005 of 1965, and who was appointed as receiver of the shares by the proceedings, dated July 14, 1969, of Masud, J., in suit No. 600 of 1961, to produce the 2, 295 shares before this Court and give custody of the same to the Registrar of this Court. The Registrar will hand them over to the appellant