LexJAI NARAIN RAM LUNDIA versus KEDAR NATH KHETAN AND OTHERS.
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1956 62 SUPREME COURT REPORTS JAI NARAIN RAM LUNDIA v. (1956) KEDAR NATH KHETAN AND OTHERS. [VIVIAN BosE, JAFER IMAM and CHANDRASEKHARA AIYAR JJ.) Execlttion-Power of transferee Court,-DeOTet for specific pSf'- formance-Reciprocal conditions indissolubly link.d together-AltSf'a- tion in a material particular, if permissible-Code of Civil Procedure (Act F of 1908), ss. 47, 42, 0. XXI, r. 82(1). An executing court cannot go behind a decree so as to vary its terms and when the obligations it imposes on the paities are reciprocal and inseverable, rendering pa.rtie.l execution impossible, the decree must be executed wholly as it stands or not at all. This is particularly true of a decree for specific performa.nce where the party who seeks execution must satisfy the executing court that he is in a position to perform the obligations which the decree imposes on him. That in cases where the identity or substance of what the decree directs a party to give to the other is in dispute, the .executing court alone has the power to decide it under s. 4 7 of the Code of Civil Procedure and under s. 42 of the Code the powers of the court executing a decree on transfer are identical with those of the court which passed the decree. That although the remedy provided by O. XXI, r. 32(1) of the Code of Civil Procedure is available in executioD. of a decree for specific performance, it can be used only by a person entitled to exe- cute the decree and if, by reason of bis own incapacity to perform his part, he is precluded from seeking execution, O. XX!, r. 32(1), Can have no application. Consequently, in a. case where, as in the present, the defendant sought to execute a decree for specific performan~e of a contract but was himself unable to perfor1n one of the obligations the decree im- posed on his party, namely, to transfer five a.nnas share in a \ - partnership firm, for the res.son that the firm had ceased to exist by dissolution before the date of execution, he wn.s not entitled to exe- cute the decree. Heldf7trther, that the defendant could not be allowed to substi- tute five a.nnas share in the assets of the dissolved firm instead, as that would amount to an alteration of the decree which the execu- tion court was not competent to make. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 206 of 1955. S.C.R. SUPREME COURT REPORTS 63 On appeal from the judgment and order dated 7956 the 5th May 1954 of the Patna High Court in Appeal Jai Narain Ram from the Original Order No. 284 of 1951 arising out Lundia of the order dated the 11th July 1951 of the Court of v. Subordinate Judge, Motihari in Misc. Case No. 30 of KedarNath 1951. Khetan at1d others Veda, Vyas, (S. K. Kapur and Ganpat Rai, with him) for the appellant. 0. K. Daphtary, Solicitor-General of India (K. B. Asthana and 0. P. Lal, with him) for respondent No. 1. 1956. January 31. The Judgment of the Court was delivered by BosE J.-This appeal arises out of certain execu- tion proceedings. The decree which the appellant, J ainarain 'Ram Lundia, seeks to execute is one that directs specific performance of a contract to sell certain shares in a private limited company known as the Ganga I)evi Sugar Mills, together with a five annas share in a partnership firm called the Mai:wari Brothers, on payment of a sum of Rs. 2,45,000. The facts are as follows. The partnership firm, known as the Marwari Brothers, was formed on the 29th of February 1936. The partners consisted of two groups called the Bettia Group and the Padrauna Group. The Padrauna Group consisted of (1) Kedar- nath Khetan and (2) a firm called Surajmal. Thef;!e two were the plaintiffs in the suit. Kedarnath was on~ of the partners of the Surajmal firm. The Bettia Group consisted of (1) Gobardhan Das (2) Jainarain Ram Lundia (3) Badri Prasad and (4) Bisheshwar Nath. On Bisheshwar Nath's death his son Madan Lal Jhunjhunwalla stepped into his shoes. These per- sons were the defendants. The Marwari Brothers :Firm was formed for the purpose of promoting a company for starting a sugar mill in Cbamparan and for securing the managing agency of the company for itself for a period of ninety years. This was done. The capital of the company consisted of Rs. 8,00,000 divided into 800 shares of 1956 J ai Narain Ram Lundia v. KedarNath Khetan and others Bose}. 64 SUPREME COURT REPORTS (1956] Rs.1,000 each. The shares were distributed as follows. In
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