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Judgment
Venkatasubba Rao, J.—An important question has been raised as to the right of a defendant after judgment in a suit for specific
performance.
The facts which gave rise to the application made in the Lower Court, so far as they are relevant to the present purpose, may be briefly stated.
The plaintiff-purchaser obtained in O.S. No. 70 of 1923 (that was the suit in which the application was made) a decree for specific performance of
the contract referred to in the pleadings, to sell Immovable property. The 1st defendant was the vendor under the contract, and defendants 7, 8
and 13 are alienees of different portions of the property from the 1st defendant with notice of the contract. On the 31st March, 1926, the following
decree was made by the Subordinate Judge''s Court of Mayavaram:
That the plaintiff do deposit in Court within six months from this date Rs. 5,500 with interest at 11 annas per cent. per mensem from 17th
December, 1913, to date of deposit.
That on deposit the 1st defendant on his behalf and on behalf of his sons, defendants 2 to 5 and defendants 7, 8 and 13 do execute and register
a conveyance in respect of their respective properties in the plaint (less the items adjudged as lost to the plaintiff by reason of the finding on issue
16) ; that the deed of conveyance shall be joint or several according as the plaintiff desires and that all costs in connection with the execution and
registration of conveyance shall be borne by the plaintiff.
That the plaintiff do get possession of the properties with mesne profits to be determined in execution as from the date of deposit of the money,
defendants 1, 7, 8 and 13 being severally liable for mesne profits according to the extent of property held by each.
That defendants 7, 8 and 13 do have a charge on the money in deposit according to their respective stake on the properties as per their sale
deeds obtained by them or their predecessor, their remedies being left to be enforced in future proceedings.
and 5. That the plaintiff do pay 1st defendant Rs. 304-8-0 on account of his costs of the suit and the plaintiff and the other defendants do bear their
own costs of the suit as noted below.
It will be noticed that this decree is in some respects somewhat curious. By the time the decree was made, nearly 13 years had elapsed from the
date of the contract, and the plaintiff is directed by the decree to bring into Court the purchase-money with interest from 17th December, 1913,
the date of the contract. While the plaintiff was thus made liable for interest for over 13 years, there was no corresponding liability imposed on the
defendants, who remained in possession of the property, for mesne profits, as under the decree they were made liable only from the date of the
deposit. Another curious feature is, that the amount payable to the defendants-alienees was left to be determined in future proceedings. It was felt,
it is stated, that this judgment bore harshly on the plaintiff, but as he had died even before it -was pronounced, his legal representatives were unable
to file an appeal. The amount which under the decree the plaintiff was directed to pay was found to be in excess of the value of the property, and
no attempt was therefore made by his representatives to carry the decree into effect. The 1st defendant, finding it to his advantage to enforce this
decree, presented a petition to the Lower Court in the following terms:
that this Hon''ble Court be further pleased to pass a final order in conformity with the preliminary decree already passed in the suit, so as to enable
him to reap the fruits of the preliminary decree.
By this petition the 1st defendant stated that he was willing to carry out his part of the contract, and applied that the plaintiff''s representatives
should be directed to bring the purchase-money into Court. Defendants 7, 8 and 13, it must be noted, did not join'' the 1st defendant in making this
application. The stand taken by the latter in the Lower Court wag, that the plaintiff was bound to pay in return for the land in his possession which
he was prepared to convey, the proper proportion of the price. But the contention in that form has been abandoned in this Court, the 1st
defendant''s case now being, that on behalf of the dissenting defendants the conveyance should be executed by the Court and that the plaintiff
should be called on to bring in the full price. The learned Subordinate Judge, holding that the only remedy open to the applicant is to have the
contract rescinded u/s 35(c) of the Specific Relief Act, made the following order:
It seems to me, therefore, that the only final order which can be passed on this application is that the plaint contract, dated 17th December, 1913,
evidenced by Exhibit D, be rescinded and determined. I accordingly pass the said order.
It is against this order that the revision petition has been directed.
A question of general importance has been argued whether, when a decree for specific performance is made, it operates in favour of both
parties, so that the defendant also can have it carried into effect. It is argued on the one hand that the defendant to the action does not enjoy the
same privilege as the . plaintiff, that as regards the relief he can obtain in the suit itself, Section 35(c) of the Specific Relief Act prescribes a remedy
and that he cannot obtain any other or further relief in the action than what is provided by that section. It is contended, on the other hand, that the
decree in the suit enures for the benefit of both and each of the parties can after judgment claim specific performance. The question is, which of
these two views is correct? The Specific Relief Act, it has been pointed out, is based on the rules and practice of the English law in relation to the
doctrine of specific performance: AIR 1928 208 (Privy Council) . Their Lordships of the Judicial Committee have interpreted the sections of this
Act, both as to substantive law and practice, in the light of the principles recognised by the English Courts. If there is an express divergence, then
the Act will be strictly adhered to, whatever be the English law (same case, page 623). It seems to be well settled under the English practice that a
decree for specific performance operates in favour of both parties. The usual form of a decree is to declare that the agreement ought to be
specifically enforced without stating that it shall be so enforced at the instance of the plaintiff only. The form given in Seton on ""Decrees"" runs thus
7th Edn., Vol. III, pp. 2136 and 2137:
Declare that the agreement in the pleadings mentioned, ought to be specifically performed and carried into execution and order and adjudge the
same accordingly.
In India also this view was taken in some cases: Karim Mahomed Jamal v. Rajooma ILR (1887) 12 Bom. 174 and Bai Karimabibi v.
Abderehman ILR (1922) 46 Bom. 990. In a recent case the point was discussed at great length by Rankin, C.J., who, after an elaborate
examination of the authorities, came to the same conclusion: Herambachandra Maitra v. Jyotishchandra Singha ILR (1931) 59 Cal. 501. In
England a suit for specific performance is not deemed to come to an end by the passing of the decree. In Chapter IV of Fry''s standard work on
Specific Performance he discusses the various reliefs that may be obtained after judgment. The right to these reliefs is not possessed by the plaintiff
alone. The learned author says S. 1170, 6th Edn.:
It may and not unfrequently does happen that after judgment has been given for the specific performance of a contract, some further relief becomes
necessary, in consequence of one or other of the parties making default in the performance of something which ought under the judgment to be
performed by him or on his part; as, for instance, where a vendor refuses or is unable to execute a proper conveyance of the property, or a
purchaser to pay the purchase-money. The character of the consequential relief appropriate to any particular case will of course vary according to
the nature of the subject-matter of the contract and the position which the applicant occupies in the transaction; but in every case the application
must, under the present practice, be made only to the Court by which the judgment was pronounced.
and then again,
There are two kinds of relief after judgment for specific performance of which either party to the contract may, in a proper case, avail himself. S.
1171
Then he goes on to describe at some length the various kinds of relief that are open to a vendor and those open to a purchaser. The nature of
the relief depends upon whether the applicant is the vendor or the purchaser, not upon whether he is the plaintiff or the defendant. The chapter
deals with varieties of reliefs, and some of them may probably not apply to India, the law and practice here being in some respects different; but
there is no reason why the principle, which has been accepted by the English Courts, should be departed from in this country. The Specific Relief
Act is defective in this respect, and we should turn for guidance to the English practice on the subject. Let us take the case where the defendant
happens to be the purchaser. The plaintiff, who has obtained judgment, makes default. What then is the defendant''s position? He is prepared to
pay the purchase price and other wise, observe the decree, but on the hypothesis that it does not enure for his benefit, he cannot compel the
plaintiff to execute the conveyance. There is no provision in the Specific Relief Act, which such a defendant can invoke. The decisions say that the
plaintiff may obtain in certain circumstances an extension of the time originally granted. When then can the defendant feel that he is absolved from
the contract? How long is he to keep ready in his hands the purchase-money ? It cannot be that the intention of the law is that a defendant-
purchaser should be subject to this unmerited hardship. Therefore in the case of a defendant-purchaser at any rate, there being no provision in the
Specific Relief Act, we must, necessarily turn to the recognised English practice in that respect. Next, is there anything to show that, where the
defendant is the vendor, the remedy provided by the Act is exhaustive? I may observe first, that Section 35 applies to both the plaintiff-vendor as
well as the defendant-vendor and is not confined to the latter case only. Supposing a vendor as plaintiff obtains a decree for specific performance
but finds that the defendant is impecunious and cannot pay the purchase-money, why should it not be open to him to have the contract rescinded
under that section ? And secondly the words"" in the same case"" in the final paragraph refer to the case mentioned in Clause (c). I agree with the
view taken on this point in Kurpal v. Shamrao ILR (1922) 47 Bom. 589 and by Thiruvenkatachariar, J., in Mahommadalli Sahib v. Abdul Khadir
Saheb (1927) 59 M.L.J. 351. The opening paragraph of the section refers to the ""following cases""; then three cases follow, case (c) being one of
them. The words ""in the same case"" in the final clause of case (c) must therefore refer to that particular case. And further, why should it be
assumed that a departure from the English law is intended and the relief is restricted to the contingency mentioned in the penultimate clause, namely,
where the purchaser is in possession? A contrary opinion has been expressed by Collett in his Specific Relief Act (see Vth Edition, p. 282), and
there is a dictum of Kemp, J., to the same effect in Chathurbuj v. Kalyani AIR 1927 Bom. 239; but I must express my respectful dissent from this
view. Section 35 thus in my opinion applies to both the plaintiff-vendor and the defendant-vendor, and it enables them to have the contract
rescinded in the very action in which the decree for specific performance was made. But is that any reason for holding that the other remedies open
to them under the English law are denied to them under the Act ? We cannot overlook that the word used in the final clause of Section 35 is ""may
and not ""shall"". It therefore seems to me that a defendant, whether he be purchaser or vendor, must after judgment be in a position to require
specific performance from the opposite party in the same action. If the principle on which the rule of mutuality is founded be accepted, the
remedies open to the plaintiff after judgment must be equally available to the defendant and the varied nature of the remedies is set forth, as already
noticed, by Fry in his work. Thus, the right of rescission recognised in Section 35(c) of the Specific Relief Act is not confined to a vendor, whether
plaintiff or defendant, but must be equally open to a purchaser, it being immaterial whether he appears in the action as plaintiff or defendant. That
the principle of reciprocity is not limited to'' the enforcing of the decree by requiring specific performance, is the effect of the observations of Sir
Walter Schwabe, C. J., in Abdul Shaker Sahib v. Abdul Rahiman Sahib ILR (1922) 46 Mad. 148 : 44 M.L.J. 107. The learned Chief Justice
gives a rough summary of the remedies enumerated by Fry, as they obtain in the English system and assumes that they are equally available to
either party in this country. This in my opinion is the necessary result of the acceptance of the dual principle recognised in the English law: first, that
the passing of the decree does not terminate the suit but that various reliefs may be obtained after judgment in the action itself (according to Sir
Walter Schwabe, C.J., the decree is in the nature of a ""preliminary decree""), and secondly, that the decree enures not only for the benefit of the
plaintiff but also of the defendant. Mr. Seshagiri Sastri suggested (though on the facts of this case it was not necessary for him to take up this
position) that in regard to limit of time, applications by a defendant to enforce the decree would be governed by the provisions of the Limitation
Act. It is sufficient to point out that this does not seem to be the true principle on which relief is granted to either party, but this subject I need not
pursue further.
I have so far assumed that the decree that is passed has followed ''the proper form, i.e., that it directs the contract to be specifically enforced-
the words being wide enough to apply to the plaintiff as well as the defendant. If as in the present case the decree has not followed that form, it is a
matter of detail, whether the Court before granting relief to the defendant would insist upon the decree being in the first instance amended. In any
case it would be advisable for the Courts to follow the English form in framing specific performance decrees and further by way of caution to
insert, as suggested by Sir Walter Schwabe, some such words as ""further consideration reserved"" at the end of the decree.
In the result, the contention of Mr. Seshagiri Sastri that a defendant can enforce specific performance is in my opinion well-founded. But the
question still remains, can the 1st defendant in the circumstances of. this case obtain such a relief? The plaintiff is neither in law nor under the decree
bound to take a conveyance of the 1st defendant''s share alone. Can the latter then compel defendants 7, 8 and 13 against their consent to join in
the conveyance? They were not, it must be noted, parties to the contract, but the Court, giving effect to a rule of equity, held that they were bound
at the instance of the plaintiff. The 1st defendant in violation of his contract with him alienated parts of the property to these defendants. As against
the plaintiff no doubt, they may have no equities, but surely the 1st defendant cannot be allowed to perpetrate a double wrong. His conduct
towards the plaintiff was wrongful, and he now invokes the aid of the Court to undermine the position of the alienees to whom he professed to pass
a good title. The Lower Court, by way of affording a relief to him, rescinded the contract u/s 35, and in my opinion he is not entitled to any higher
or further relief.
I may mention that almost at the close of the case it was intimated to us that the 13th defendant had died subsequent to the appeal and his legal
representatives had not been brought on the record. This, in the view I have taken, is immaterial.
In the result, the Civil Revision Petition is dismissed with costs.
Curgenven, J.
I agree that this Civil Revision Petition should be dismissed, but I would like briefly to put my reasons for that view in my own words.
Accepting the general proposition that a decree for specific performance may be enforced by the defendant Where the plaintiff has not chosen
to give effect to it, and even regarding the decree in the present case, in spite of its actual form, as amenable to such treatment, I have not been
persuaded that, in such circumstances as the present, the Court would be bound to comply with the 1st defendant''s (petitioner''s) request. The
agreement to sell was in 1913, and nearly six years later, in 1919, the 1st defendant parted with certain portions of the property to the 7th, 8th and
13th defendants. They were aware of the agreement, but it seems to have been represented to them that the plaintiff had no intention of carrying it
out. Now, since the 1st defendant cannot enforce the decree so far only as his own property is concerned, enforcement must entail deprivation, at
his instance, of the property which these defendants acquired from him. However the equities may stand between these persons and the plaintiff, it
appears to me repugnant to all principles of equity that the 1st defendant should now enforce the decree against their interests and without their
consent, thereby depriving them of the title which he had himself conveyed to them. Had he himself sued the plaintiff for specific performance after
making these alienations, I do not think that any Court would have given him a decree; and I am 10th to believe that, now that the plaintiff has a
decree, the 1st defendant may get indirectly what he could not get directly and the Court has no discretion to refuse to give it operation at his
instance. Such enforcement may not technically amount to execution, but it appears to me that, where only one of several defendants applies, there
must necessarily be a power in the Court such as, in execution, is supplied by Order 21, Rule 15, Civil Procedure Code, to safeguard the interests
of the remainder. Were this not so, it would have been open to this petitioner to dispose of all but a few cents of the property and yet compel the
unwilling holders of the remainder, not to speak of the equally unwilling plaintiff, to become parties to a sale. I do not think that, even had we in this
case strictly to administer the law, the doctrine of the reciprocal enforceability of decrees for specific performance would need to be applied in so
unqualified a manner. A fortiori it follows that this petition for revision must be dismissed.