NAJIBULLA SARDAR Vs. HARIMOHAN MITRA

JUDGEMENT

(1.) The plaintiff, who is the patnidar, sues defendant, who is the darpatnidar, for recovery of thoka, sheha, jamawasil and hastabud papers of the darpatni mahal for the years 1329 to 1332, on the basis of a contract contained in a registered kabuliyat dated 19 Chaitra 1286. Failing such recovery, plaintiff claims Rs. 100 as compensation. The defence mainly is that the contract is not binding on the defendant and that the plaintiff is not entitled to claim specific performance. The Courts below have agreed in finding in favour of the plaintiff. The trial Court made an order on the defendant to make over the claimed papers to the plaintiff within 30 days" and failing that the plaintiff would recover Rs. 60 as compensation. This decree was affirmed by the lower appellate Court. The defendant now comes in second appeal.

(2.) There is a preliminary objection that the second appeal does not lie, as the suit was of the nature cognizable by a Court of Small Causes and the value was less than Rs. 500. It is contended that it is really a suit for recovery of moveables coming under Section 10, Specific Relief Act. But it does not seem to me to be an ordinary money suit of that nature. The plaintiff bases his claim upon a contract, which is of an executory character. I consider that this is really a suit for specific performance of contract and consequently is not cognizable by a Court of Small Causes. As a general rule, the proper remedy of a person seeking to enforce the observation of a positive contract is an action for specific performance, as distinct from the enforcement of a negative contract by injunction. As a further distinction, it should be noted that an action for specific performance is appropriate only to the enforcement of the obligations of an executory as distinguished from an executed contract. For this purpose an executor contract is an agreement which is not intended between the parties to be the final instrument regulating their mutual relations under their contract. An executed contract, on the contrary, is a contract in which all has boon already done to settle finally the relative positions of the parties: sea Hals bury's Laws of England, Vol. 27, Art. 3, p. 3.

(3.) Farther: "an action" for delivery of a specific chatttel differs from an action for specific performance. since it is based on an allegation, not that a contract to deliver has not been performed, but that the chattel is the property of the plaintiff and is being wrongfully detained by the defendant: ibid., p. 5.