<NAME>, J.

1. This revision is by the defendant in O.S. No. 278 of 1994, on the file of District <NAME>'s <ORG>, Tindivanam.

2. The suit filed by the respondents herein as plaintiffs is one for permanent injunction restraining the defendant, petitioner herein, from interfering with the plaintiffs' peaceful possession and enjoyment of the suit properties either by themselves or by their representatives or successors-intitle or by anyone claiming through him till 19.10.2002; for costs of suit; and for other reliefs.

3. Along with the suit, the plaintiffs filed I.A. No. 1004 of 1994 for an interim injunction. The material averments in the affidavit filed in support of the said petition are, that the first plaintiff is a private limited company incorporated under Companies Act 1956. Its Certificate of Incorporation is No. 18-17521 of 1989, on the file of <ORG>, Tamil Nadu, and the same was registered on 9.6.1989. The main objects to be pursued by the plaintiffs are said to be many, and, according to the plaintiffs, the foremost object was to have quarry operations by acquiring lights over lands which contain deposits of granite. The business of the company is buying, selling and exporting granites by quarrying the same. It is said that the defendant is the absolute owner of the suit properties, and he approached the plaintiffs with an offer of lease for the purposes of exploiting those lands. Pursuant to the same, exploitation rights have been given to the first plaintiff-company represented by the second plaintiff in respect of the suit lands by duly executed document dated 20.10.1992. By the said arrangement, the plaintiffs are entitled to exploit granite deposits in the suit lands for a period often years from 20.10.1992, with an option to renew the same. An advance of Rs. 7 lakhs was paid and the same is identified in the document dated 20.10.1992 also. In view of the exploitation of the deposits by the plaintiffs, Rs. 10,000 per cubic metre has to be paid to the defendant whenever granite is quarried by 1st plaintiff. It is said that possession of the suit lands was also vested with the plaintiffs by the arrangement dated 20.10.1992, and the plaintiffs took possession of the lands and commenced several activities of quarrying the suit lands. It is said that the plaintiffs, respondents herein, by exploiting the quarry have further settled by way of supply of granite worth Rs. 4,90,000 to one <ORG>, Madras to whom the defendant, through his proprietory concern, had financial commitments to pay the same. It is also said that the defendant received from plaintiffs Rs. 20 lakhs. It is further said that subsequent to taking possession, the plaintiffs had their overseas commitments, and the contract of purchase has been entered into with foreign buyers for the export of black granite from suit lands. It is stated that the documents produced along with the plaint will show that the plaintiff has acted on the agreement. It is said that the respondents (plaintiffs) have also paid sales-tax to the <ORG> and statutory authorities for movement of blocks from the quarry to the Harbour. The petitioner also gave Letters of Authority to plaintiffs under his trade concern name '<ORG> of which he is the proprietor, authorising the plaintiffs to act and represent the defendant before public authorities as well as in respect of various activities concerning the exploitation of granites by plaintiffs, respondents herein. It is said that persons inimically disposed towards the plaintiffs, have approached the defendant to act contrary to the trade interest of the plaintiffs, and, as a result of that, the defendant, petitioner herein, has completely changed his attitude and is creating various disturbances to the plaintiffs in the smooth exploitation of suit lands. It is further stated that the petitioner herein has started acting against the interest of the respondents herein from 11.4.1994 by joining hands with trade competitors, contrary to the written commitments made by him. As per arrangement dated 20.10.1992, the respondents herein are entitled to exploit the deposits till 19.10.2002. The respondents, apprehending dispossession by force at the hands of the petitioner herein, filed the injunction petition.

4. A counter-affidavit has been filed by the petitioner herein (defendant) wherein he dispute the rights of the plaintiffs to get an injunction. It is said that a document was executed on 20.10.1992, but the same was only for the purpose of getting a loan from <ORG>, and it was never intended to take effect. It is not an enforceable contract. It is also said that there was no necessity or occasion to give possession of the suit lands to the respondents. The petitioner herein asserts that he continues to be in possession, and he is doing business in granites. It is further averred that the statement that he has received a sum of Rs. 7,00,000 on the date of the agreement by way of advance, is also not correct. The petitioner also denies the allegation by the respondents that they have supplied granites to various countries and that they have settled transaction with <ORG>. The receipt of nearly Rs. 20 lakhs is also disputed by the petitioner. It is also said that all the documents produced along with the plaint will show that only the defendant is in possession of the suit lands. According to the petitioner herein, the documents do not reveal that he (defendant) has authorised the plaintiffs (respondents herein) to represent him before the Collector and other officials. According to the petitioner, he is still in possession of the suit properties. He disputes the pecuniary jurisdiction of this Court and also the maintainability of the suit as it stands. According to the petitioner herein, the respondents (plaintiffs) have no prima facie case and, therefore, injunction should not be granted.

5. An additional counter-affidavit has also been filed by the defendant, stating that the document dated 20.10.1992 which is the basis of the suit, cannot be enforced in a Court of Law, since it is an unregistered document. According to the defendant, the plaintiffs are not entitled to rely on that document for any purpose. It is also said that under Section 23 of the Contract Act, the court is not competent to take into consideration the terms of the agreement. It is said that it violates the provisions of Rule 33 of Tamil Nadu Minor Mineral Concession Rules, 1959.

6. The trial court, as per order dated 17.8.1994, dismissed the injunction application.

7. The trial court was of the view that the respondents have not proved a prima facie case, and the balance of convenience is also in favour of the petitioner herein. The trial court also took the view that the agreement cannot be enforced since it is opposed to the statutory provisions under Tamil Nadu Minor Mineral Concession Rules. Finally, it has also stated that there is a contractual liability, and, even if the plaintiffs are put to any loss, the same can be compensated in damages. It has also said that the very execution of the document is against statutory provisions. Taking the above view, the trial court dismissed the injunction application.

8. The respondents (plaintiffs) filed C.M.A. No. 161 of 1994. The defendant (petitioner herein) who was the respondent in the said appeal, filed C.M.P. No. 34 of 1995 in that appeal seeking permission to adduce additional evidence.

9. The lower appellate court, as per judgment dated 15.9.1995, allowed the appeal and granted an order of injunction. The lower appellate court was of the view that the agreement dated 20.10.1992 is a lawful agreement whereby possession had passed, and the suit which is only for injunction, in the opinion of the learned appellate Judge, can be maintained. The learned Judge was also of the view that the agreement in question does not violate the provisions of Tamil Nadu Minor Mineral Concession Rules, and that the same is not void. The learned appellate Judge was also of the view that Rule 23 of the Tamil Nadu Minor and Mineral Concession Rules enables registered holder and lessee to jointly work the mines, and, when the respondent (defendant) had permitted the plaintiffs to represent him before the authorities, on that basis, the plaintiffs can take the licence and work in the quarry. The lower appellate court said that till a licence is obtained, the contract cannot be enforced against the Government. As between the parties to the agreement, the agreement was held to be valid. It prima facie took the view that possession was handed over to the plaintiffs and the defendant had also received amounts in consideration of the same. On the above view, it held that the plaintiffs have proved a prima facie case, and accordingly granted temporary injunction till the disposal of the suit.

10. It is against the said judgment of the lower appellate court, this revision is filed.

11. Learned Senior Counsel for the petitioner put forward a contention that the agreement dated 20.10.1992 cannot be considered for any purpose, and the finding rendered by the lower appellate court regarding possession is against the materials placed before court. Learned Senior Counsel also argued that the document dated 20.10.1992 cannot be enforced in <ORG>, since the same is not registered. He further argued that if the agreement dated 20.10. 1992 is enforced, the same will be against Section 23 of the Contract Act and also against public policy. He also argued that when the trial court has exercised its discretion in refusing injunction, the lower appellate court, under normal circumstances, should not reverse the same, unless patent illegality is shown in such exercise of discretion by the trial court. Learned Senior Counsel also argued that since the suit is based on a contract, injunction suit is not the proper remedy, and the suit should have been one for specific performance of the agreement. It is also said that injunction should not have been granted under Section 41 of the Specific Relief Act. Learned Senior Counsel also attacked the judgment of the lower appellate court on the ground that it has not considered the aspects of balance of convenience and irreparable loss or injury, which are the necessary ingredients that have to be considered before granting injunction.

12. According to the learned Senior Counsel for the respondents (plaintiffs), this being a revision, this <ORG> may not interfere with the conclusion reached by the lower appellate court. He wanted the revision to be dismissed with costs of the respondents.

13. As stated earlier, the only one point that has to be considered in this revision is, whether the judgment of the lower appellate court is liable to be interfered with, in exercise of revisional jurisdiction.

14. The document executed between the petitioner and the respondents herein is marked for reference as Ex. P-28. It is in Tamil. Even at the time when the document was produced in court, an objection was taken by the petitioner herein that the same cannot be admitted in evidence, since it is not properly stamped, nor registered. The trial court permitted the marking of the document subject to payment of stamp duty, finding that there is an agreement. The question whether the document requires registration or not, and whether the same can be considered for any collateral purpose, was not considered by the trial court.

15. I will first deal with the nature of the document executed between the parties, for, that creates a legal relationship which is sought to be enforced through court. It says that the properties which are described in the Schedule belong to the second executant, and since they are covered by rocks, they could not be cultivated by him. It further says that in the properties described, black granites are situated, and the first executant may excavate the black granites, cut them and make use of the same, either for himself or for the purpose of his business. It is further said that for the said purpose of enabling the first party to excavate granites from the property, the document is executed. Further down, it is said that the period of agreement will be initially for ten years, and, on the expiry of the ten years, the first executant will have right of renewal. Still further down, it is said that the first executant may take possession of the property, excavate the granites, and in consideration of the same, Rs. 7 lakhs have been paid. It further says that for every one sq. metre of excavated granites, the first executant shall pay Rs. 10,000 to the second executant. On receipt of the amount, the second executant shall permit the first executant to remove the excavated granites through the passage mentioned in the document, either through motor vehicles or by coolies. It says that on the basis of the said document, the first executant was being put in possession of the properties. It also says that the first party is bound to see that no damage is caused to the property of the second party. It also says that the first executant may move the <ORG> for getting necessary licence, for which the second party has signed and authorised the first party to do so. It is seen that a letter of authorisation has also been given by the petitioner herein authorising the respondents (plaintiffs) to appear on his behalf for the purpose of obtaining mining lease in respect of the properties in question, from the authorities concerned. On 10.9.1993, another letter of authorisation has been given by the petitioner authorising the second plaintiff (second respondent) to appear on behalf of the petitioner before the Collector, in the matter of quarrying operations in the property in question.

16. The case that is put forward by the respondents herein is that on the basis of Ex. P-28 agreement between the parties, possession passed to them, and, therefore, they are entitled to continue in possession for the entire term of ten years, and the defendant (petitioner herein) should be restrained from interfering with their possession.

17. In the plaint, the respondents have only stated that Ex. P-28 is an arrangement whereby they are entitled to exploit the granite deposits from the suit lands and that they are entitled to be in possession till 19.10.2002. What is the impact of the said document is the first question to be considered.

18. Learned Senior Counsel for the respondents, relying on the decision reported in <CITATION> . , argued that the transaction between the parties is a lease, and the possession handed over as per the said document amounts to a transfer of land, given for enjoyment. Learned Counsel relied on paragraphs 29 to 35 of the judgment of <ORG> (cited) and wanted this Court to hold that the said document is a lease, and that a mining lease need not be in strict compliance with a 'lease' as defined under the Transfer of Property Act . Paragraphs 29 to 35 of the judgment of <ORG> read thus:

It is important to bear in mind that the term "lease" occurring in the definition of "mining lease" given in Section 3(c) of Act 67 of 1957 does not appear to have been used in the narrow technical sense in which it is defined in Section 105 of the Transfer of Property Act. But, as rightly pointed out by a Bench of <ORG> in <CITATION> A.I.R. 1932 Cal. 775 : I.L.R. 59 Cal. 1314, a settlement of the character of a mining lease is everywhere in India regarded as 'lease'. A mining lease, therefore, may not meticulously and strictly satisfy in all cases, all the characteristics of a 'lease' as defined in the Transfer of Property Act . Nevertheless, in the legally accepted sense, it has always been regarded as a lease in this Country. <CITATION> A.I.R. 1932 Cal. 775 : I.L.R. 59 Cal. 1314, Mukerji, J., speaking for the Bench, held that a coal mining settlement may be regarded as satisfying the requirements of Section 105 and treated as a lease because under such settlement some portion, however small, of the surface has to be used for carrying on the mining operation and taking the coal out.

Be that as it may, in the instant case, as shall be presently discussed, the transaction evidenced by Ex. I, not only falls within the definition of a "mining lease" under Act 67 of 1957, but also partakes of all the essential characteristics of a 'lease' defined in Section 105 of the Transfer of Property Act.

Section 105 , Transfer of Property Act , defines a 'lease' of immovable property as-

a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

In the second paragraph of the section, it is expressly stated that the price so paid in consideration of the transfer is called "the premium, and the money, share, service, or other thing to be so rendered, is called the rent" The definition of "immovable property" given in Section 3 , para. 1 of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1987) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3 . According to the definition given in <CITATION> of the General Clauses Act, "immovable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression 'immovable property' comprehends all that would be real property according to English Law and possibly more See (1873) 1 I.A. 34 (P.C.). Thus, every interest in immovable property, or a benefit arising out of land, will be "immovable property" for the purpose of Section 105 , Transfer of Property Act .

A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a 'right to enjoy immovable property' within the meaning of Section 105 ; more so, when as in the instant case it is coupled with a right to be in its exclusive has possession for a specified period. The 'right to enjoy immovable property' spoken of in Section 105 , means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108 , Transfer of Property Act , which, regulates the rights and liabilities of lessors and lessees of immovable property.

19.The Supreme Court, in that case, has approved the decision reported in <CITATION> A.I.R. 1932 Cal. 775 : I.L.R. 59 Cal. 1314 wherein it was held thus:

Where in a mining lease, it is agreed that on payment of royalty, the lessee would be entitled to take out coal, such a settlement may not come under the strict definition of lease, because lease under Section 105 is the transfer of a right to enjoy such property and in mining leases there is no question of enjoyment of the property and what is payable under the settlement is not rent but only the price of the quantity of coal taken. But settlements of this character are everywhere regarded as lease though not falling strictly within the definition of lease. Yet some portion however small of the surface of the earth to be used for carrying on mining operations and taking the coal out and to that extent the transaction may be taken to satisfy the requirements of the definition.

20. In view of the said decisions, I hold that the intention of the parties was to create an interest in <ORG>. If so, it has to be considered whether the document can be admitted in evidence.

21. Admittedly the document is not registered. Section 17(d) of the Registration Act says, "leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent" is compulsorily registrable. In this case, admittedly, the document seems to be for a period often years. If that is so, Section 40 bars the consideration of the document for any purpose, and it says, it shall not affect any immovable property comprised therein and it cannot be received as evidence of any transaction affecting such property or conferring any power. It is subject to the Proviso that an unregistered document can be made use of for some collateral purpose.

22. <NAME> on Registration - Fourth Edition (1989) at page 78 has commented on the scope of the said Section, namely, Section 17 . The learned author says thus:

An instrument giving rights to take away timber, firewood and coal along with trees is compulsorily registrable. <CITATION> , it was held that the transfer of right to cut timber trees for three years was not compulsorily registrable as it related to moveable property and not rights arising out of land. A lease of a colliery must bemade by a registered deed under Section 17 . <CITATION> , it was held that a partnership deed for extraction of mica registered outside the district of the mica mine must be regarded as unregistered and was, therefore, not admissible in evidence. <CITATION> , it was held that transfer of standing trees of the value of Rs. 100 or upwards is compulsorily registrable.

23. <CITATION> , the question was whether partnership deed is compulsorily registrable. The partnership was set up for the purpose of extracting mica from mines, and for the purpose of sale of mica extracted from the mines. Learned Judge of <ORG> held that the same amounts to dealing with immovable property and also falls within the meaning of the phrase "any other benefit to arise out of land" occurring in Section 2(6) of the Registration Act. The relevant portion of the said decision reads thus:

A partnership set up for the purpose of extraction of mica from mines and for purchasing and selling mica extracted from the mines clearly amounts to dealing with immovable property and falls within the meaning of the phrase "any other benefit to arise out of land" occurring in Section 2(6) and therefore such a partnership business cannot but be held to be a business relating to immovable property. The instrument creating such a partnership creates or declares a right, title or interest in an immovable property, which is of a non-testamentary character and as such falls within Clause (b) of Section 17(1) of the Registration Act and is, therefore, compulsorily registrable.

24. Handing over possession for the purpose of enjoyment is an essential term of the document and the same cannot be treated as collateral. If that be so, the document cannot be admitted for any purpose, and the plaintiffs are not entitled to prove possession de hors the document. In fact, in the plaint, possession is claimed directly from the document itself. Similar question came for consideration in <ORG> v. <NAME> . There, the case was whether the tenant is entitled to sub-let. The prohibition contained in the document which was not registered. In that case, <ORG> held thus:

A deed purporting to create a lease is inadmissible in evidence in case it is not registered. As such all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. The question whether a lessee is entitled to create a sub-lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be dissociated from the lease and considered separately in isolation.

25. Section 2(6) of the Registration Act reads thus:

2. Definitions: In this Act, unless there is anything repugnant in the subject or context, (1) to (5) xxxx (6) "immovable property" includes lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but notwithstanding timber, growing crops nor grass;

<CITATION> , the learned Judge held that since registration of the document was invalid, it has to be taken as a document unregistered for all purposes, and if so, the document cannot be taken into consideration as creating a right in immovable property. The learned Judge held that extracting mica cannot be considered as a business relating to immovable property. It can only be a transaction in respect of an immovable property, and hence compulsorily registrable.

26. Learned Senior Counsel for the petitioner says that if it is a lease, naturally, the same becomes compulsorily registrable. Being an unregistered document, the very basis of the suit falls to the ground.

27. It is urged that such a contention was taken before the trial court, and the trial court has allowed the document to be marked, treating the same as an agreement, subject to payment of deficit stamp duty. The question whether the document was compulsorily registrable or not, was not considered by any of the courts below. If it is only an agreement of lease, the remedy of the plaintiffs can only be filing a suit for specific performance, and not by filing a suit for injunction. The suit as it stands is only for injunction stating that the plaintiffs obtained possession of the basis of the document dated 20.10.1992. The question whether the document is compulsorily registrable or not is a pure question of law, and to find out a prima facie case, the said argument can be accepted.

28. Alternatively also, we have to consider whether the plaintiffs are entitled to an injunction on the settled principles of law.

29. The lower appellate court granted injunction on the ground that as per the document dated 20.10.1992, the parties were free to handover possession and take possession and, therefore, the plaintiffs who have obtained lawful possession of the properties, are entitled to enjoy the same for the period provided in the document. The lower appellate court was of the view that the question of possession and the question of extracting granites are different, and one need not be mixed with the other, for the purpose of granting injunction. The lower appellate court was of the view that in case of injunction, possession alone is material. I cannot agree with the said finding of the lower appellate court.

30. If the document is treated as an agreement by which possession passed, the possession is coupled with certain rights and obligations. It cannot be-taken separately. Possession is handed over for the purpose of excavating granites only. The enjoyment of the property which is a necessary ingredient for a lease also relates to the excavation of granites only. There cannot be any question of possession without enjoyment for, possession is a necessary ingredient for a lease. The plaintiffs are not given more possession. Certain obligations also follow on the basis of the document. The petitioner herein is entitled to realise the income whenever granites are excavated. For every sq. metre of granite, the petitioner is entitled to Rs. 10,000 as consideration. There also, there is an obligation on the part of the plaintiffs to remove the granites and to level the property to an extent. These are certain obligations which go along with possession. Possession cannot be treated as independent of these obligations.

31. If possession and enjoyment cannot be separated, the further question that arises for consideration is, whether that enjoyment contemplated under the document could be specifically enforced. Only in cases of contract which can be specifically enforced, injunction also can be granted.

32. Section 41 of the Specific Relief Act deals with cases where an injunction cannot be granted Section 41(e) of the Act says that injunction cannot be granted to prevent breach of a contract, the performance of which cannot be specifically enforced. Section 14 of the said Act deals with cases where specific performance cannot be granted. Section 14(d) of the Act deals with contracts the performance of which involves the performance of a continuous duty which the <ORG> cannot supervise. A reading of Ex. P-28 will show that the petitioner herein is bound to give assistance to the respondents (plaintiffs) for the performance of excavating the granites from the property. The reason described in that clause is, that excavating minor mineral is governed by Mines and Minerals (Regulation and Development) Act , 1957 and the Rules framed thereunder Section 4 of the said Act says that 'No person shall undertake any prospecting or mining operation in any area, except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder' Section 14 of the Act says that 'The provisions of Section 5 to 13 (inclusive) shall not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals.' Therefore, the Act makes it clear that Section 4 applies to minor minerals. Under Section 15 of the Act, <ORG> is empowered to make Rules in respect of minor minerals.

33. On the basis of the said provision, Rules have been framed in respect of minor minerals known as Tamil Nadu Minor Minerals Concession Rules, 1959. Rules 33 and 34 of the said Rules deal with leasing of quarry rights and how they have to be executed.

34. Rule 33 reads thus:

33. Leasing out of quarrying rights: If the registered holder does not intend to carry on quarrying operations himself but leases out the right to do so to another person, the registered holder and his lessee shall enter into an agreement with the Government binding themselves jointly and severally to accept the conditions and stipulations set out in these rules. The agreement shall be in the form set out in Appendix V to these rules.

35. Rule 34 reads thus:

34. Agreements to be registered: The agreements executed in the forms set out in Appendixes IV and V to these rules are compulsorily registrable under Section 17(1) of the Indian Registration Act, 1908 - the former at the cost of the registered holder and the latter at the cost of the registered holder and his lessee.

36. Rule 10 of Appendix IV says thus:

If the registered holder does not intend to carry on mining operations himself, but intends to leave but the right to do so to another person the registered holder and his lessee shall enter into an agreement with <ORG> binding themselves jointly and severally to accept the conditions and stipulations herein contained which agreement shall be in the form set out in Appendix V to the Tamil Nadu Minor Mineral Concession Rules, 1959.

37. Appendix V deals with Form of Joint Agreement for quarrying and carrying away minor minerals by lessees, and such agreement should be executed in favour of the <ORG>. I have already stated that under Rule 34 (extracted above), the agreement in favour of the <ORG> will have to be registered under Section 17 of the Indian Registration Act. It is joint agreement that is contemplated, and the obligations created are also joint. So long as the lease continues, the obligations as per the agreement also shall continue. Only on the basis of the agreement executed in favour of the <ORG>, mining operations also can be had. Since the petitioner must also be a party to the document in favour of the <ORG>, and the continued compliance of the terms and conditions of the agreement is a condition precedent, the continued supervision of the court is also contemplated if the agreement is to be implemented for the full term. It is, therefore, Section 14(d) of the Specific Relief Act says that contracts the performance of which involves the continuous supervision by court, cannot be specifically enforced. If it cannot be specifically enforced under Section 14(d) , naturally there is a bar for granting injunction under Section 41(e) of the Act.

38. Fry on Specific Performance - 6th Edition (1985) says (at page 46) that specific performance will be refused in regard to contracts for the working of quarries, and coal mines, or involving the performance of continuous acts or duties. The learned author also deals with contracts which are indivisible in character wherein injunction could be refused. At page 388 of the same book, the learned author says thus in paragraph 833:

The principle that the court will not partially enforce contracts is illustrated by many other cases. Thus, where there was a partnership contract for an absolute term of years, leaving undefined the amount of capital and the manner in which it was to be provided, this being a contract which in its entirety the courts could not enforce, the court refused to enforce it in part, by refusing the representatives of a deceased partner a decree for the dissolution of the partnership and the sale of the partnership property. In another case the court refused to separate the parts of an award which were capable of specific performance from those which were not. And again, where the contract was that the landlord of a residential flat should employ a porter, who should do certain specified work for the benefit of the tenant, that was held to be one indivisible contract, and the court declined to interfere by injunction to compel performance of part of it.

39. In <NAME>, Law of Specific Relief - Ninth Edition (1992), at pages 201 and 202, the learned author says thus:

The clause enacts that a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise, cannot be specifically enforced. Thus, a contract which involves the necessity of the performance of duties continued over a long period of time, which the court cannot supervise, cannot be specifically enforced. A court can order the doing of something which has to be done once for all, so that it can see to its being done. But it will not decree specific performance of a contract, the execution of which would require, more or less, permanent supervision by the court, if it cannot make it. If the court were to make, what purported to be a final order for specific performance in such cases, such order would not be the end of litigation, but, on the contrary, its fruitful and continuous source. The test should be one of reasonableness and practicability.

Where a charge is created for maintenance on certain property and its rent, and a person interferes with the realisation of rent, asserting his own right to the rent of the property, the charge being for a long period involving the performance of a continuous duty, an injunction restraining interference cannot be granted as it involves the performance of a continuous duty which the court cannot supervise.

40. In G.C.V. Subba Rao on Law of Specific Relief - Third Edition (1989), at page 429, the learned author has considered the same question comparing the English Law. The learned author has extracted an English decision regarding the grant of injunction and specific performance. The relevant passage reads thus:

Contract involving performance of continuous doty - ( Section 14 , Clause, (d), old Section 21 , Clause (g) - (A) Analogous English Law-

In <NAME> v. <ORG> the lessor of certain premises agreed to provide the tenants a resident porter who was to look after the building and be in constant attendance in the building to clean the stairs and passages, receive for and deliver to the tenants letters, messages, etc. The lessors appointed a porter who was away for four hours every day acting as a cook in a neighbouring building. The tenants brought the suit for specific performance of the lessor's contract. It was held that a decree for specific performance could not be granted for two reasons. In the first place that part of the agreement which provided for the appointment by the lessors of a porter, was not divisible from so much of it as provided for the various duties of the porter and as such a contract would require the constant supervision of the court during the existence of the lease, it was susceptible of specific enforcement. Secondly, damages were a sufficient compensation for the breach.

41. I have already stated that Ex. P-28 has been executed only for a sole purpose, i.e., the respondents herein shall enjoy the property by excavating the granite. It is for that purpose, the same has been given. The same cannot be separated. We cannot consider possession alone as was done by the lower appellate court. If the same cannot be separated and the same is interlinked with enjoyment by excavating granite, which cannot be specifically enforced, the plaintiffs will not have a right to get injunction.

42. If we consider Ex. P-28 only as an agreement, the Order of the lower appellate court treating it as an agreement and collecting stamp duty for the same, as I have already said, the remedy of the plaintiffs is only to sue for specific performance of the agreement. If injunction is granted, the defendant will be prevented from entering into the property, and at the same time, the plaintiffs will continue to be in the property, without the right to excavate granite.

43. Learned Senior Counsel for the respondents submitted that in all mining leases, first there must be document of lease, and then only the question of getting licence from the <ORG> will arise. Learned Senior Counsel wanted me to read Rule 10 of Appendix IV and V in that angle. I agree with the learned Senior Counsel that there must be a lease. But we may have to consider that by lease itself, the executee is not getting right. Even if possession is handed over, that is only for the purpose enjoined under the Act. That purpose cannot be separated from possession. So, that contention of the learned Senior Counsel has to fail.

44. The trial court, after taking into consideration the various Rules framed under the Mines and Minerals (Regulation and Development) Act , 1957, the plaintiffs have no case that the balance of convenience is also in their favour. In the decision of the lower appellate court, I do not find that the question of balance of convenience or irreparable injury has been considered. A prima facie case alone is not sufficient for the grant of injunction.

45. <ORG> in <CITATION> , has considered this point and held thus:

A party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles: ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him...

The said decision was followed in <CITATION> . (1995) S.C.C. 33. In paragraph 8, gave importance to the balance of convenience, and also held that irreparable loss is also equally important as prima facie case and said that the court will have to find whether the plaintiffs can be adequately compensated if injunction is refused. Their Lordships held in paragraph 8 thus:

<CITATION> a Bench of two Judges (in which <NAME> was a member) of this Court held that the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always he hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The court further held: (S.C.C. p.721, para.5) The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession, Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that 'the balance of convenience' must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus, the court has to exercise its sound judicial discretion in granting or refusing the relief of ad-interim injunction pending the suit.

Their Lordships said that injunction cannot be claimed as of right and the matter is purely discretion of court.

46. In a recent decision of our <ORG> reported in <CITATION> by its Secretary and Ors. , the entire point has been considered in detail. The power of the appellate court in interfering with the discretion exercised by the trial court. Paragraphs 18 to 22 of the said decision are relevant for the purpose of this case. They read thus:

While dealing with the powers of the appellate court, to interfere with the exercise of the discretion of the trial court, it was held in <CITATION> thus:

Where the discretion vested in the court under Section 34 has been exercised by the lower court, the appellate court would be slow to interfere with the exercise of their discretion, In dealing with the matter raised before it at the appellate stage, the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it may come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify such interference with the trial court's exercise of discretion. If it appears to the appellate court that in exercising its discretion trial court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the appellate court to interfere with the trial court's exercise of discretion.

It was a case under Section 34 of the Arbitration Act. But it applies to all cases where discretionary orders are passed.

<CITATION> . A.I.R. 1969 S.C. 338, their Lordships refused to interfere with the discretion exercised by the trial court on the ground that the trial court has not exercised its power capriciously or arbitrarily.

<CITATION> . A.I.R. 1969 S.C. 747, in paragraph 18 (at page 755), it was stated thus:

This takes us to second limb of the fourth contention raised on behalf of the appellants. While it is true that the relief of declaration is discretionary, it is well-settled that it is only if the discretion is not exercised by the lower court in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, that the order passed by the lower court can be reversed by the superior court. Reference in this connection may usefully be made to a decision of <ORG> in <NAME> and Co. v. <NAME> 1942 A.C. 130, where the legal position was succinctly stated as follows:

There remains the question whether, assuming that in the circumstances of this case <NAME>, J. had jurisdiction to make the order of reference, his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with an appeal. So the respondent contends while the appellants urge that even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them of the impossibility of appeal from an official referee's finding of fact, and in view of the practicability of the case being tried before a Judge, without a jury. The law as to the reversal by a court of appeal of an order made by the Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in any individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other worcis, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or no sufficient weight has been given to relevant consideration such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this <ORG> in <NAME> v. <NAME> 1937 A.C. 473, where the proposition was stated by my noble and learned friend Lord <NAME>, as follows: It is clear that <ORG> should not interfere with the discretion of a Judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him the court of appeal cannot review his order unless he is shown to have applied wrong principle. The court must if necessary examine a new the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise, in interlocutory matters, the judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge, may often be of decisive importance on the final issue of the case and one which requires a careful examination by <ORG>. Thus in <NAME> v. <NAME> (1885) 29 Ch. D. 50, <NAME>, J. in discussing the discretion of the Judge as regards mode of trial says: "That discretion, like other judicial discretion must be exercised according to common sense and according to justice and if there is a miscarriage in the exercise of it, it will be reviewed.

<CITATION> 1990 S.C.C. (Supp.) 727 at 733-735, while dealing with a case under Copyright Act , their Lordships of <ORG> held thus:

The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.

This Court had occasion to consider the powers of the appellate court while interfering with the discretionary orders of the trial Judge. <CITATION> (1989)1 L. W. 54, a Division Bench of this Court to which one among us (<NAME>, J.) was a party said thus:

The principles governing the circumstances in which the appellate court can interfere with a discretionary order of the trial court granting or refusing injunction were laid down by Lord <NAME> in <ORG> v. <NAME>, and the other members of the <ORG> agreed with him. They were reiterated by him in <ORG> v. <ORG>. The following passage, in the later judgment is relevant: In an expedited appeal by the company against the Judge's refusal to grant an interlocutory injunction, the Court of Appeal 1982 Q.B. 1114 delivered an extempore judgment on May 18, 1982, shortly the publication in the Weekly Law Reports (1988) 2 W.L.R. 322 of the decision of this <ORG> in <ORG> v. <NAME>, in which this <ORG> took occasion at page 220, to point out that in appeal from the Judge's grant or refusal of an interlocutory injunction, an appellate court, including your Lordships' <ORG>, must defer to the Judge's exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of an appellate court is initially that of review only. It is entitled to exercise an original discretion of its own only when it has come to the conclusion that the Judge's exercise of his discretion was based on some misunderstanding of the law or of the evidence before him, or upon an inference that particular facts existed or did not exist, which although it was one that might legitimately have been drawn upon the evidence, that was before the Judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal or upon the ground that there has been a change of circumstances, after the judge made his order that would have justified his according to an application to vary it. Since reasons given by Judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases. Where even though may no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so abhorrent that as it must be set aside upon the ground that no reasonable Judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court had reached the conclusion that the Judge's exercise of his discretionment he set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own.

47. I have already stated that the trial court exercised its discretion in refusing the injunction. The lower appellate court did not enter a finding that the decision arrived by the trial court is capricious or illegal, or that the refusal of injunction was against any of the settled principles of law. It re-appreciated the entire facts and came to the conclusion that the plaintiffs are entitled to injunction. Unless there is a finding that the decision of the trial court is wrong, the discretion exercised by it should not be interfered with.

48. In case injunction is refused, plaintiffs have got other remedies open. The loss that may be sustained by them, can be compensated in costs and damages. The same can be ascertained and valued on the materials available. Unless the plaintiffs prove that they will be put to irreparable injury if injunction is not granted, they are not entitled to get an injunction order as prayed for by them. This principle was not considered by the lower appellate court. Balance of convenience is also to be considered alone with the aspect of 'irreparable injury'. Both the aspects, namely, balance of convenience and irreparable injury go together. I do not think any irreparable injury would be caused to the plaintiffs if injunction is refused. Likewise, the balance of convenience is also not in favour of the plaintiffs for getting an injunction order. The lower appellate court has passed the order without taking into consideration the legal principles enunciated under Sections 14 and 41 of the Specific Relief Act read with Order 39, Rules 1 and 2 of the Code of Civil Procedure. It interpreted the agreement, and assumed that the plaintiffs are entitled to get an order of injunction as a matter of right. The said approach has caused material injustice.

49. Whether any payment has been made pursuant to the agreement and whether Ex. P-28 has been executed with intent to implement it or only for the purpose of creating an evidence for taking a bank loan, are all matters to be considered during trial.

50. In the result, the civil revision petition is allowed. The judgment of the lower appellate court is set aside. The injunction application filed by the plaintiffs before the trial court is dismissed. The order of the trial court refusing injunction is restored no costs.


JUDGMENT

1. These two appeals have arisen out of a decree which purports to have been made under Order 34, Rule 6, Civil P.C. The suit was commenced by the plaintiff on 8th November 1924 against four sets of defendants namely, defendant 1 <NAME>, defendant 2 <NAME>, defendants 3 to 5 the <NAME> and defendant 6, <ORG> The bank having subsequently gone into liquidation, the liquidators were brought in as defendant 6. On 24th February 1925 a firm carrying on business under the name and style of <ORG> were added as defendant 7.

2. On 6th March 1919 defendant 1 had obtained a coal mining settlement in respect of coal lying under 366 bighas of land in mauzha Banbahal from the plaintiff and executed in his favour a kabuliyat stipulating to pay royalty at certain rates for the different kinds of coal to be taken and a minimum annual royalty of Rs. 5,000 that is to say at the rate of Rs. 400 a month from January to November and Rs. 600 in December and undertaking that if the royalty for each month was not paid within the 15th day thereof he would pay interest at the rate of Rs. 2 per cent per month till realization, and further stipulating that if the minimum royalty for two consecutive months be not paid within the third month the plaintiff would be competent to take khas possession of the colliery with all its appurtenances and creating a first charge on the leasehold lands machinery, stores, furniture etc., for the royalty and for all sorts of dues of the plaintiff. The suit was for recovery of minimum royalty from January 1923 to October 1924, both months inclusive, together with interest. The prayers were on the lines indicated in Order 34 of the Code. A more detailed reference will be made hereafter to the averments and prayers made in the plaint.

3. As regards the connexion of the other defendants with the subject-matter of the suit it would be sufficient to state the following: On 29th March 1923, defendant 1 executed a mortgage in favour of defendant 2 on receipt of Rs. 42,000 and assigned to the latter the leasehold together with the colliery and all its appurtenances, the deed being in the form of an English mortgage. On 4th April 1923 defendant 1 executed a further mortgage in similar terms in favour of defendants 3 to 5, assigning over the same properties, subject to the mortgage in favour of defendant 2, as security for Rs. 70,000 said to have been due to the said defendants on advances previously made by them. On 14th December 1923 defendant 2 assigned his mortgage debt and security to <ORG>, defendant 6. On 14th November 1924 a managing agency agreement was executed by defendant 1 in favour of defendant 7 and to this deed defendants 3 to 5 and 6 were parties.

4. On 28th April 1925 a solenama was filed as between the plaintiff and defendant 1 and on the same day, after examination of a witness who proved the charge-created by the kabuliyat executed by defendant 1 in plaintiff's favour and also said that defendant 1 had mortgaged the properties to the other defendants, a decree was passed on the solenama as between the plaintiff and defendant 1 and ex parte as against the other defendants. To the terms of this decree referenee will hereafter be made. The properties charged were sold in pursuance of this decree but fetched Rs. 1,525 only, a small part of the decretal dues.

5. About two years after, on 1st March 1928, the plaintiff applied under Order 34, B. 6, Civil P. C., for a personal decree against all the defendants for a sum of Rs. 14,843 which, he alleged, was due and unrealized on account of the decree of 28th April 1925. He asserted that defendant 1 was the original lessee and the other defendants were mortgagees in; possession and were, in fact, in possession by receipt of the usufructs of the colliery. To this prayer the defendants objected. The Subordinate Judge took evidence and eventually held that the plaintiff was entitled to such a decree as against defendants 1 to 6 and made it for Rs. 17,000 odd on 30th September 1929.

6. The two appeals are from the said decree: No. 8 has been preferred by defendant 2, <NAME>; and No. 15 by defendants 3 to 5, the <NAME>.

7. One singular feature of this case is. that if the pleadings and proceedings leading up to the decree of 1925 and the terms of that decree are carefully examined, it would seem that till that decree was passed the plaintiff never thought of obtaining in this suit anything beyond what he got under that decree, and it would also seem that the idea of having proceedings on the lines indicated in Order 34, Rule 6 as against defendants other than defendant 1 originated only at or about the time when the application was made for a decree under that rule. In the plaint the only averments relevant on the point were contained in paras. 11 and 17 which ran thus:

11. After taking a settlement of the colliery from the plaintiff defendant 1 came into possession thereof from the date of the settlement and he is possessing the same under the plaintiff, "17. Defendant 1 has been in peaceful possession of the property settled, under the plaintiff, since the date of the settlement. The plaintiff has come to know that defendant 1 has mortgaged the leasehold property to' defendants, 2, 3, 1 and 5 and that defendant 2 has again hypothecated the mortgage deed to defendant 6. The plaintiff makes defendants 2 to 6 parties for the purpose of getting the property described in Schs.(ka) and (kha) below, free from all encumbrances, and for realizing his dues from the said property as a first charge thereon.

8. In prayer (ka) a decree for Rupees 10,000 odd against all the defendants was asked for prayer (kha) was for declaration of a first charge for the money due to the plaintiff. In prayer (ga) it was prayed that if the defendants did not pay the decretal amount within the time fixed by the Court the decree might be made absolute and orders might be passed for realization thereof by sale of the properties charged. Prayer (gha) asked for a personal decree against defendant 1 in case of deficiency. Prayer (una) related to interest and costs. Besides, there was a general prayer for such additional or alternative reliefs which the plaintiff might be entitled to under the agreement and according to law, justice and equity.

9. The solenama effected as between the plaintiff and defendant 1 was that a decree for the amount claimed together with interest and costs should be passed, that a first charge as asked for should be declared and that 15 days' time should be given to defendant 1 to pay up the royalty and interest which had not been sued for. It was provided that if such payment is made, but not otherwise, defendant 1 will have four months' time to pay up the decretal amount, or else on the expiry of the said 15 days the decree shall be regarded an final and absolute and the properties charged would be sold. It was further provided that if the entire dues be not realized by the sale plaintiff shall realize the balance of his dues by the attachment and sale of defendant 1's other moveable and immovable properties or from his person.

10. The only evidence then adduced by the plaintiff was what was barely sufficient to prove the settlement which defendant 1 had taken and the witness who gave that evidence only said in addition that defendant 1 had mortgaged the properties to the other defendants. And thereupon the following decree was passed.

It is ordered and decreed that the suit be and the same is hereby decreed in terms of solenamah against defendant 1 and ex parte as against other defendants. The period fixed by the solenamah is also fixed as against the absentee defendants as the period of grace within which the decretal amount is to be paid up. In. default the leasehold properties Ka and Kha are to be sold for satisfaction of the decree. And that the sum of Rs. 990-6-3 be paid by defendant 1 to the plaintiff on account of the costs of the suit with interest thereon at the rate 'of 12 per cent per annum from this date to date of realization.

11. We are unable to see that any further questions remained to be decided or determined by the <ORG> upon the pleadings in the plaint and the prayera contained thereon. This view has been contested on behalf of the plaintiff upon various grounds which may perhaps be put in order and summarized as follows: It has been urged that the suit was a suit for sale on the basis of a mortgage and the decree should be regarded as a preliminary decree for sale under Order 34, Rule 4 or in any event as including a final decree for sale under Order 34, Rule 5 of the Code and can on no account be regarded as a. decree under Order 34, Rule 6. It has also been argued that at least so 'far as the defendants other than defendant 1 are concerned the decree was nothing more than a decree for sale following which there can always be a decree under Order 34, Rule 6. It has further been contended that in the plaint a decree against all the defendants had been asked for and. that although it may be that for some reason or other a personal decree against defendant 1 only had been prayed for it was always open to the plaintiff to apply for a personal decree against the other defendants later because it was not until a decree under Order 34, Rule 5 had been passed and a sale held thereunder had proved insufficient that the stage would arrive when such a decree could be made. It has lastly been argued that at the stage at which the decree was passed a decree under Order 34, Rule 6 would be entirely without jurisdiction. The matters to which our attention has been drawn in support of the grounds aforementioned have therefore to be dealt

12. In support of the contention that the Subordinate Judge had no jurisdiction to make a personal decree at the stage at which the decree referred to above was made the decision of this Court in the case of <NAME> v. Kirtibas Das [1931] 19 I.C. 971 has been cited. That the procedure prescribed in Sections 89 and 90, T. P. Act 1882 and by the rules in Order 34 of the Code did not and does not contemplate such a decree at such a stage cannot be disputed. The very terras of Section 90 and of Rule 6, Order 34 show that such a decree can be passed only after it has been ascertained that the nett proceeds of the sale of the mortgaged properties are insufficient to pay the amount of the decree. Though this is so in many cases on some of which the plaintiff himself relies for establishing this position decided both under the Transfer of Property Act and under the Code, composite decrees embodying not merely what the decree for sale should be but also decisions as regards personal remedies have been passed by Courts. And when so passed they have not been regarded as altogether invalid but only the question whether a further decree could be had or not has been held to depend upon the terms of the decree already made: e. g. <CITATION>  17 I. C. 263 Khulna Loan Co. Ltd. v. Jnanendranath Base A.I.R. 1917 P.C. 85 <CITATION> [19191 53 I.C. 904 and <CITATION>  31 Bom. 244 If ever there was a doubt as regards the validity of such a decree that doubt has been completely removed by the decision of <ORG> in the case of <CITATION> A.I.R. 1918 P.C. 159 in which it was pointed out that it is not necessary to put such a construction on Section 90 , T. P. Act  as would establish as a condition precedent to the power of decreeing personal payment of the balance that the mortgaged property must first be sold and found insufficient to satisfy the debt but that the words of the section are satisfied in cases where the Court passes a decree that on the happening of the event when the nett proceeds of the sale are found to be insufficient the balance should be paid. It is therefore unnecessary to proceed on the assumption that it is impossible in any case to regard the decree that was passed in this case as a combined decree. The real question is: Can it be so construed. The decree expressly says:

The suit be and the same is hereby decreed in terms of the solonamah against defendant 1 and the solenamah itself is appended to the decree, and one of the terms of the solenamah is term No. 7, viz. that:

if all the dues of the plaintiff be not realized from the said colliery and machineries etc. the plaintiff shall realize the balance of his decree by an attachment and sale of other moveable and immovable properties of the defendant or from his person.

13. It is difficult to imagine how it can be contended that the decree is not a combined decree unless it be on the following grounds which the plaintiff has put forward. It has been said in the first place that as it was not a matter within the province of the <ORG> to consider at that stage whether a personal decree should be passed or not the decree should be construed as being limited to the other provisions of the solenama and as not including term No. 7. Such a supposition is impossible in view of the ex-press terms of the decree and further because such a construction would have for its basis an impossible assumption that the terms of the solenama were varied by the <ORG> in so far that one of its essential terms will have to be regarded as having been left out. Three oases have been cited which it has been said would favour such a construction. The first one is the case <NAME> v. <NAME> the bearing of which decision upon the question before us is not apparent unless it be the plaintiff's contention that the compromise was unlawful or in contravention of law or was one which did not satisfy the requirements of Order 23, Rule 3, and therefore unfit to be recorded. We cannot conceive why it should be held that it was not open to the plaintiff and defendant 1 to adjust the suit as between themselves and put an end to it altogether by entering into a compromise by providing for a personal remedy also. The next case referred to is the case of <NAME> v. <NAME> . What happened in that case was this. A suit was brought by mortgagee 1 to enforce a mortgage security, and in it the mortgagors as well as second mortgagees were made parties.

14. The claim was decreed in part by the primary <ORG>. During the pendency of the appeal a petition of compromise was filed which purported to settle the differences between the plaintiffs and the mortgagors. The second mortgagees ware not parties to the settlement. The effect of the compromise was to increase the amount payable under the decree to the plaintiffs. It was held that a decree could not be passed in accordance with the compromise. The case in our opinion has decided nothing which may be useful in the present case. The third case is that of <NAME> v. <NAME> which has been affirmed by <ORG> in <NAME> v. .<NAME> [1931] 137 I.C. 672 (P.C.). This case was cited, as far as we could understand, in support of the contention that even though the solenama and the decree based on it, passed at an antecedent stage, may have dealt with the question of personal remedy, yet when the stage arrives at which a decree under Order 34, Rule 6 can be passed the <ORG>'s power is absolutely unfettered to make a decree in accordance with that rule irrespective of the terms of the solenama. We are unable to hold that the case is an authority for any such proposition. What was contended in that case was that even supposing there was no bargain to the effect that the defendants should be relieved of their personal liability when the preliminary decree under Rule 4 and the final decree under Rule 5 were not in complete accordance with law by reason of the fact that they were in terms of the solenama between the parties, a decree under Section 6 could not be tolerated. This contention was rejected and it was held that strict compliance with the terms of the previous rules was not an invariable antecedent to the awarding of a personal decree. The learned advocate of the plaintiff also took his stand upon another position. He urged that at least so far as defendants other than defendant 1 are concerned, the decree under consideration was nothing but a decree for sale in accordance with Rule 5, Order 34 and that therefore it was open to the plaintiff to apply for a decree 'against them under Rule 6 when the sale proceeds proved insufficient. But as against them, what was the true meaning of the decree ? It has been urged that it was a decree against them as such a decree could be against the mortgagor, defendant 1 himself. Beading the averments in the plaint, to which reference has already been made, it is plain beyond the faintest doubt that those defendants were made parties to the suit in their capacity of puisne encumbrancers and not on the ground of any liability for the mortgage debt, nor on the ground of their having been in possession. Indeed, it was never suggested that they were ever in possession, while in the clearest possible words the possession of defendant 1 was averred and pleaded.

15. In the evidence of the one witness who was examined on plaintiff's behalf which formed the basis of the decree that was passed against 'them ex parte, not one word is to be found as regards the possession of those defendants, and even the encumbrances in their favour were not specifically proved. But, in any case, there was nothing disclosed either in the plaint or in the evidence which would suggest even remotely that as against them any decree except such as could be made against puisne encumbrancers was intended. It has not been, nor can it be, disputed that a personal decree against a' puisne encumbrancer, merely on the footing of his being a puisne incumbrancer, is out of the question. But it has been argued that the prayers in the plaint in which the word defendants " in the plural is used, show that a joint and several decree for the money as against all the defennants was asked for and that the use for the money as against all the defendants was asked for and that the use of the word in the decree is indicative of an intention to make such a decree. On the averments to which we have referred such an interpretation is not possible : it would mean that a prayer for a joint and several decree was made against the mortgagor as well as the puisne incumbrancers on no other footing than that;they were puisne encumbrancers; and it would leave unexplained why in prayer (gha) a personal decree against defendant 1 only was asked for. Moreover if the decree is to be construed in the way contended for on behalf of the plaintiff, namely as being a decree for money against all the defendants, where was the room for a personal decree at all? In that case the money could have been realized from their personal and other properties even on the decree as it stands.

16. Having considered the terms of the decree with care we can find no escape from the conclusion that it was a combined decree under Rules 5 and 6 against defendant 1 on the basis of the solenama and embodying all its terms; and as against the defendants other than defendant 1 it meant to give the plaintiff all the reliefs that he was entitled to under his plaint, namely such reliefs as he was entitled to in order to have the properties concerned sold free from their encumbrances--'which was the prayer he had made--and all that was necessary to provide for that purpose was embodied in the decree. The question whether the plaintiff could ask for a further decree against defendant 1 under Rule 6 when the amount left unrealized by the sale was ascertained does not arise for consideration here. But so far as the other defendants are concerned, we are clearly of opinion, there was no room for any further decree.

17. Some papers have been produced before us on behalf of the plaintiff to show that in the proceedings relating to the sale that was held, the other defendants or some of them joined with defendant 1 in making an application under Section 47 of the Code in which the insufficiency of the value stated in the sale proclamation was pleaded. It has been argued that from this fast it should be inferred that a joint and several decree as against all the defendants had in fact been passed, because they must have joined in that application on that assumption. We cannot say why those defendants did so; but even such an assumption cannot, in our judgment, alter the character of the decree such as it really was. We are therefore of opinion that the proceedings which led to the passing of the decree from which the appeals before us have boon taken were entirely misconceived and that the decree itself cannot stand. What we have already said is, in our opinion, sufficient for disposing of this appeal. But the appellants have sought to repudiate their liability for a personal decree upon various other grounds. Inasmuch as the case may not rest here, we proceed to deal with those grounds, though quite shortly. It has been urged that the settlement in this case created a charge which, since the provisions of the Transfer of Property Act , 1882 came to be introduced in the Code of 1908 in the shape of Order 34, and prior to the amendments of that order in 1929, could only be enforced by the provisions as to sale or redemption contained in that order. Rule 15 of that order ran in these words:

All the provisions contained in this order as to the sale or redemption of mortgaged properties shall, so far as may be apply to property subject to a charge within the meaning of Section 100 , T. P. Act, 1882.

18. In the case of <NAME> v. <NAME> [l905] 2 A.L.J. 379 Banerjee, J., expressed the view that the holder of a charge was like a mortgagee suing for sale entitled to ask for and obtain a decree under Section 90 , T. P. Act, and unless he be a person who is not entitled to a personal remedy against the person whose property is subject to the charge, he was entitled to obtain such remedy in view of the wide words of that section. He was of opinion that the words all the provisions hereinbefore contained as to a mortgagor shall so far as may be apply to the owner of such property and the provisions of Sections 81 and 82 and all provisions hereinbefore contained as to a mortgagee instituting a suit for the sale of the mortgaged property shall so far as may be apply to the person having the charge although they referred to the rights of a mortgagee instituting a suit for the sale of the mortgaged property and did not in terms refer to any other property, were wide enough to include the right to obtain a personal decree in accordance with Section 90 of the Act. <NAME>, J., was of opinion that the words referred to only those provisions which deal with a sale of the mortgaged property. In the same case when it went up on appeal under the Letters Patent, <NAME> v. <NAME>  28 All. 365 the question was not decided, but the view of Banerjee, J., was approved. In 1908 the words of Section 100 were cut down; the words all provisions hereinbefore contained as to a mortgagee instituting a suit for the sale of the mortgaged property were deleted and the matter was reproduced in Order 34, Rule 15 as set out above. The words of that rule in their ordinary significance would limit the applicability of only those provisions in the order which relate to the sale or redemption of mortgaged property to property which is subject to a charge. The remedy by way of a personal decree therefore was |not provided for in the order. But from this we are not inclined to hold that the charge-holder would not have a personal remedy. Holders of charges, which are not recognized as mortgage under any statutory enactment, have always been treated by the <ORG> as on much the same footing as mortgagees, and if it was the intention of the amendments of 1908 to take away the personal remedy from a charge-holder we think the matter would have been expressly dealt with. In the case of <CITATION> A.I.R. 1918 P.C. 159 the charge created by deposit of title-deeds which was not recognized as a mortgage under the then existing law was allowed to be attended with a personal remedy. There is also a decision in the case of <NAME> v. <NAME> A.I.R. 1930 Oudh 10 in favour of this view in which however no reason is given. We are inclined to overrule this contention. Then it has been contended that these defendants, on the footing of the assignments they obtained under the mortgages in their favour, were not liable for the plaintiff's dues. This contention has been urged on two grounds. In the first place it has been said that the settlement itself was not a lease. A lease of immovable property under Section 105 , T. P. Act, is the transfer of a right to enjoy such property. It is said that in the settlement in the present case there was no question of any enjoyment of the property, but what was given by it was the right to take out coal, and therefore the settlement did not amount to a lease. In support the observations of Lord <NAME> in <NAME> v. <NAME>  2 H. L. Sc. & Div. 273 at p. 284 have been quoted:

Although we speak of a mineral lease or a louse of mines the contract is not in reality, a -lease at all in the sense in which we speak of an agricultural lease. There is no fruit that is to say there is no increase, there is no sowing or reaping in the ordinary sense of the term; and there are no periodical harvests. What we call a mineral lease is really, when properly considered a sale out and out of a portion of land. It is the liberty given to a particular individual for a specific length of time, to go into and under the land and to got certain things if he can find them and to take them away just as if he had bought so much of the soil.

19. Other cases also have been cited in support in which <NAME> v. Christie Supra has been referred to: Coltness Iron Co. v. Black [1881] 6 A.C. 315 at p. 335 <NAME> v. Wardlaw [1883] 8 A.C. 641 Munro v. Didcott [1911] A.C. 140 <CITATION>  7 Bom. 425 Prince Mahomed Baktyar Shah v. <NAME>  2 C. L. 3. 20. Reliance has also been placed upon the observations of their Lordships of <ORG> in the cases of <NAME> v. <NAME> A.I.R. 1917 P. C. 163 and <NAME> v. <NAME> A.I.R. 1928 P. C. 234 that the essential characteristic of a lease is that the subject is one which is occupied and enjoyed, and the corpus of which does not in the, nature of things and by reason of the user disappear.

20. In the present case the <ORG> states that if any surface is required lease thereof would have to be taken, and this too supports the appellant's contention that what was payable under the settlement was not rent but only the price by instalment of the quantities of coal taken. For certain purposes therefore and in order to consider whether some particular principle or dictum applicable to leases strictly socalled to mining leases, a distinction may have to be drawn since such a distinction undoubtedly exists. But settlements of this character are everywhere regarded as leases, and indeed the mortgagor as well as the appellants have, as the documents show, dealt with the subject-matter on the footing of its being a leasehold. We are not prepared to regard the settlement as anything else than as a lease though not falling strictly within the definition contained in Section 105 , T. P. Act, or partaking of the essential character of a lease within the meaning of the statute. Some portion, however small, of the surface had to be used for carrying on the mining operations and taking the coal out, and to that extent the transaction may be taken to (satisfy the requirements of the definition, We have not here to determine the extent of the leasehold. The second ground urged, so far as this contention is con-corned, is that oven if the transaction amounted to a lease, its assignment by way of English mortgage did not create a liability on such mortgagee in respect of the royalty. The decision upon which the <ORG> below has relied for holding that such liability was created is the case of <CITATION> A.I.R. l927 Cal. 725.

21. In that case <NAME>, <NAME>, expressed the view that the English law as to the liabilities of assignees of leaseholds depends entirely upon a distinction between legal and equitable estates a distinction for which the Transfer of Property Act has loft no room in India and which is not to be imported into Indian law, that when a lessee executes an English mortgage his right to redeem is a right on certain conditions to get it back and in India this right cannot be looked upon as an equitable estate existing before re-assignment and that it cannot be held that in India a lessee does not part with his whole estate under an English mortgage and further that the whole of the interest of the lessee having been assigned over to the mortgagee the latter becomes liable for the rent. There are difficulties in the way of adopting this view in its entirely, or in any event in applying it to the present case. The definition of an English mortgage as given in the Transfer of Property Act , Section 58 , Clause (e) must be read subject to the definition of a mortgagor as given in Clause (a) of that section and consequently an English mortgage in India can hardly be regarded as the transfer of the entire estate of the mortgagor to the mortgagee; it is correct however not to regard what is left in the mortgagor as an equitable estate, but it is nevertheless some estate, an interest only in the estate having been transferred under the mortgage. In our opinion therefore it is not easy to say of an assignment by way of an English mortgage in India executed by a lessee that the whole of his estate passes under the [mortgage to the mortgagee.

22. The provisions of the Transfer of property Act must be regarded first before resorting to the law and practice as it obtains in England : <CITATION> . Then, the rule in William v. Bosanquet  3 Moore 500 that when a party takes an assignment of lease by way of mortgage as a security for money lent, the whole interest passes to him and he becomes liable on the covenant for payment of rent though he has never occupied or become possessed in fact, which is the rule on which the decision in the case of the <CITATION> A.I.R. l927 Cal. 725 has proceeded is itself a rule which applies only if there is no special provision to the contrary : see <NAME> v. <NAME> 4 Bligh. N. Section 380 . Indeed in the case of <ORG> supra A.I.R. l927 Cal. 725 there was an express covenant in the mortgage for payment by the mortgagee of the rent reserved by the lease. In the case before us the mortgagor covenanted with the mortgagees, i. a., both sets of appellants, that so long as any money remained due under the mortgage he would go on paying the royalties, etc. We are accordingly of opinion that the appellant <NAME> merely by reason of his being an English mortgagee was not liable for the royalties due under the lease. Then again the case of the appellants, the <NAME>, seems to us to rest on a still higher footing. They were as already stated subsequent mortgagees the dead in their favour being also in the form of an English mortgage. It is very difficult to see what estate, if at all, passes to such mortgagees. If the English law is to be applied they are not liable. <NAME>, J., in the case of In re Gee Ex parte Official Receiver  24 Q. B. D. 65 observed:

Undoubtedly in an ordinary ease of assignment for value the assignor after the assignment remains liable on his covenants, and the assignee is also liable on them by virtue of privity of estate. It is only on the ground of privity of estate that the trustee would ever become liable on those covenants; and, inasmuch as the previous assignment has transferred that liability to the assignee, leaving on the bankrupt (i. e., the mortgagor) only the liability under the covenants arising out of privity of contract he ceases to have the land burdened with onerous covenants. It is true that some years ago a question did arise as to whether in the case of a mortgage the general rule applied. This however was decided in the affirmative a considerable time ago; and it cannot be doubted at this day that where there is an assignment of the whole term to a mortgagee, the mortgagee becomes by virtue of the assignment the owner of the lease burdened with the covenants, and the assignor no longer possesses any land with onerous covenants which can by virtue of the statute become vested in the trustee. It is true that the assignor, where the assignment is by way of mortgage, retains the equity of redemption; but that is an equitable right which is not burdened with onerous covenants. It is not because he is the owner of the equity of redemption that he can be compelled to perform the covenants, but solely by virtue of the privity of contract that exists between him and the lessor, and that liability cannot by bankruptcy be transferred to the trustee.

23. In the Mayor, etc., of Carlisle v. <NAME> [1807] 8 East. 487 at p. 497 it was said:

Whether a mortgagee who has not entered be or be not liable to an action of covenant as assignee, it is quite clear that the devisees of an equitable estate are not so.

24. We are therefore of opinion that even in a, suit properly framed for recovery of royalty from all the defendants none but defendant 1 could be made liable. Lastly it has been contended that a decree for personal liability against the appellants on the footing of their having been in possession is also not supportable, because, apart from anything else, they were in point of fact never in possession. The Subordinate Judge in holding against the appellants on this point has relied upon three pieces of materials: that there was no express denial on their part that they were in possession; that there was an admission of such possession contained in a petition of claim; and that they were parties to the agreement under which defendant 7 was appointed managing agents. As regards the omission to deny we do not set much store by it as it is not so clear that such denial was necessary. The admission contained in the petition of claim, to which however it should be stated, the appellant <NAME> was not a party, is explained by the appellants the <NAME>, and in our opinion that explanation is not unworthy of acceptance. So far as the managing agency agreement is concerned it is clearly an agreement by which only the mortgagor, defendant 1, appointed the managing agents with the concurrence of the <NAME> and of the <ORG>, their consent being necessary to vary the order of their respective charges and to create a first charge in favour of the managing agents and from this deed no inference can legitimately be made that the appellants were in possession.

25. On the other hand, the statements in the plaint, an affidavit of the plaintiff's agent one <NAME> dated 1st December 1924, the returns submitted under the Mines Act , and the letters Ex. A series and the other evidence on the record, oral and documentary, negative the position that the appellants wore in possession. The Subordinate Judge has drawn an adverse inference against the appellants for nonproduction of their accounts but we are unable to agree with him in his conclusions. In the result we allow the appeals, and set aside the decree complained of in so far as it is against the defendants other than defendant 1. The appellants will be entitled to their coats in this <ORG> as against the plaintiff-respondent, one hearing fee, which is to be divided equally between the appellants in the two appeals being allowed.

26. Any security, which the appellants may have deposited in pursuance of the order of this Court relating to stay of execution, will be returned to them.