JATINDRA NATH BASU Vs. PEYER DEYE DEBI

JUDGEMENT

(1.) THIS is an appeal from the decree, dated March 1, 1909, of the High Court at Calcutta, which on appeal set aside the decree, dated April 6, 1908, of Chitty J., who had tried the suit under the original jurisdiction of that Court.

(2.) THE suit was brought to obtain a decree for the specific performance of an agreement, dated June 21, 1895, by which the original defendant Trailokya Nath Basu, now deceased, had agreed to purchase from the executors and the executrix (hereinafter referred to as the executors) of Bangsa Gopal Nandi for the price of Rs. 19,000 a decree and all the rights appertaining thereto which the said executors had obtained on July 17, 1893, against Nrisingha Prokash Misra on a mortgage. Chitty J. dismissed the suit. The High Court in appeal made a decree for specific performance.

(3.) THE agreement of which it is sought to obtain specific performance was an executory agreement, for the completion of which something remained to be done in order to put the parties in a position relative to each other in which by the preliminary agreement of June 21, 1895, they were intended to be placed. As was pointed out by Lord Selborne L.C. in Wolverhampton and Walsall Ry. Co. v. London and North Western Ry. Co. (1873) L.R. 16 Eq. 433, 439, "the expression ' specific performance,' as applied to suits known by that name, presupposes an executory as distinct from an executed agreement, something remaining to be done, such as the execution of a deed or a conveyance, in order to put the parties in the position relative to each other in which by the preliminary agreement they were intended to be placed." In this case what remained to be done was, on payment by Trailokya Nath Basu of the agreed price, the transference to him of the decree for sale of July 17, 1893. Such a transfer of the decree to Trailokya Nath Basu could, by reason of Section 232 of the Code of Civil Procedure, 1882, be effected only by an assignment in writing. On and after June 1, 1898, the decree, as a decree capable of being executed, could not by reason of the bar of limitation be assigned to Trailokya Nath Basu. It had become a dead decree, whereas the decree, whatever might be its value, which he had agreed to purchase, and which the executors had agreed to assign to him, was a decree capable of execution.