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Hungerford Investment Trust Ltd. Vs. Haridas Mundhra and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 148 of 1969 (Suit No. 600 of 1961)
Judge
Reported inAIR1971Cal182,75CWN517
ActsSpecific Relief Act, 1963 - Sections 3, 28 and 28(1); ;General Clauses Act, 1897 - Sections 6; ;Specific Relief Act, 1877 - Section 35; ;Code of Civil Procedure (CPC) , 1908 - Sections 11, 100 and 101; ;Constitution of India - Article 133
AppellantHungerford Investment Trust Ltd.
RespondentHaridas Mundhra and ors.
Appellant AdvocateS.B. Mukherjee, Adv.
Respondent AdvocateR.C. Deb, Adv. (for No. 1), ;Dipak Sen, Adv. (for No. 10) and ;Goho, Adv. (for Nos. 7 and 8)
DispositionAppeal allowed in part
Cases ReferredEllerman Lines Ltd. v. Read
Excerpt:
- b.c. mitra, j. 1. this is an offshoot of a spate of litigations arising out of an agreement for the sale of the controlling block of shares of a private company, turner morrison and co. private ltd. the aims and objects of the seller and the buyer of the shares have shifted and changed with dramatic suddenness. the seller at one stage eager to complete the sale was stoutly resisted by the buyer. later on the position changed altogether and the buyer shifted his position to one of great keenness to complete the sale and acquire the shares, the seller by then started advancing a claim for rescission of the contract for sale. this is the quick changing scene which forms the background of the matter.2. the application out of which this appeal arises was made by hunger-ford investment trust.....
Judgment:

B.C. Mitra, J.

1. This is an offshoot of a spate of litigations arising out of an agreement for the sale of the controlling block of shares of a private company, Turner Morrison and Co. Private Ltd. The aims and objects of the seller and the buyer of the shares have shifted and changed with dramatic suddenness. The seller at one stage eager to complete the sale was stoutly resisted by the buyer. Later on the position changed altogether and the buyer shifted his position to one of great keenness to complete the sale and acquire the shares, the seller by then started advancing a claim for rescission of the contract for sale. This is the quick changing scene which forms the background of the matter.

2. The application out of which this appeal arises was made by Hunger-ford Investment Trust Ltd. (in voluntary liquidation) the appellant and others for an order that the agreement dated October 30, 1956, and the decree dated February 25, 1964, do stand rescinded, for an order directing the Receiver to tender to the respondent No. 1 Haridas Mundhra 2,295 shares of Turner Morrison and Co., Ltd., and payment to the Receiver of a sum of Rs. 86,60,000/-, for an order that upon failure of Haridas Mundhra to take delivery of the shares and pay the price thereof, the agreement for sale do stand rescinded on expiry of the date and time without any further order of this Court, and for various other reliefs.

3. By exchange of letters Hunger-ford Investment Trust Ltd. (in voluntary liquidation) (hereafter referred to as the vendor) agreed to sell to one Haridas Mundhra 2,205 fully paid-up shares of Rs. 1000/- each (being 49% of the subscribed capital) of Turner Morrison and Co. Ltd. (hereafter referred to as the company). By the agreement an option was given to Haridas Mundhra to purchase the remaining 51% shares of the company within 5 years, on terms and conditions mentioned in the letters exchanged between the parties. The exchange of letters was followed by a formal agreement on October 30, 1956. By this agreement 49% of the shares in the capital of the company was sold to Haridas Mundhra and his nominee British India Corporation Ltd., and the option mentioned above was also reserved to Mundhra. In exercise of this option Mundhra claimed 51 % shares of the company, which not having been sold and transferred to him, on April 19, 1961, he filed a suit in this Court (No. 600 of 1961) against the vendor and others for specific performance of the agreement. The company was a party defendant to the suit, but as Mundhra did not wish to proceed against the company, the suit as against the company was dismissed, and on February 25, 1964. a decree for specific performance of the agreement was passed in the suit This decree declared that the agreement relating to sale of 51% Ordinary Shares of the company ought to be specifically performed, the vendor was directed to deliver to Mundhra 51% Ordinary Shares of the company against payment of the consideration fixed at Rs. 86,60,000/-. An injunction was issued restraining the vendor and other defendants in the suit from voting, except in accordance with the instruction of Mundhra. An injunction was also granted restraining sale of the shares to any one other than the plaintiff in the suit.

4. An appeal was preferred against the decree (Appeal No. 69 of 1964) and an order staying execution of the decree, except so far as it related to the injunction, was made until disposal of the appeal. The vendor took out a Master's summons on August 30. 1965, for an application in which it was prayed that Mundhra do carry out the decree by paying Rs. 86,60,000/-, that the vendor do make over proper transfer deeds in respect of the 51% shares of the company, within a time to be fixed by the Court, and that in default of payment of the sum of Rs. 86,60,000/- within the period to be fixed by the Court, the contract do stand rescinded. This application was dismissed with costs on September 28, 1965, and the vendor preferred an appeal against the order of dismissal (Appeal No, 286 of 1965). This appeal was dismissed on August 18, 1966.

5. On 15-11-1965, the company instituted a suit against the vendor (Suit No. 2005 of 1965) claiming Rs. 79,70,802/-for principal and Rs. 47,96,250.16 for interest on account of payment made by the company on behalf of the vendor to the Income-tax Authorities. A claim was also made by the company for possession and sale of 2295 shares in exercise of its lien under Article 22 of the Articles of Association of the company. In this suit the company applied for appointment of a receiver of the 2295 shares, which represented 51% of the shares of the company. In this application an order was made on July 13, 1966, whereby a receiver was appointed of the said shares. There is good deal of dispute with regard to this order and to that dispute I will refer later in this judgment. The receiver so appointed is still in possession of 2295 shares of the company, by virtue of an order made by the Supreme Court.

6. On or about August 26, 1964, Appeal No. 69 of 1964 was dismissed, leaving Haridas Mundhra free to perform his obligation under the decree and take delivery of the shares upon payment of the price thereof in terms of the decree. But before dismissal of this appeal, on February 28, 1964, the Certificate Officer, 24 Parganas, had attached the decree in Suit No. 600 of 1961, for failure on the part of Mundhra to satisfy six certificates then pending against him. On a memorandum issued by the Certificate Officer, Ray J. made an order on March 2, 1964, staying the execution of the decree until cancellation of the notice by the Certificate Officer or until the certificate-holder or certificate-debtor applied for execution of the decree. Besides the attachment by the Certificate Officer, attachments were levied in three other execution proceedings. On April 10, 1964, an order was made by the Master of this Court under Order 21, Rule 53 of the Code of Civil Procedure in execution of a decree obtained by the Champaran Sugar Co. Ltd. and British India Corporation Ltd., decree-holders in Suit No. 179 of 1960 in the Court of the Second Civil Judge, Kanpur. On the same day viz., April 10, 1964, a similar order was made by the Master of this Court in Execution Case No. 59 of 1963, on the application of Kanpur Sugar Works Ltd, and British India Corporation Ltd., decree-holders in Suit No. 178 of 1960 in the Court of Second Civil Judge, Kanpur. On November 30, 1964, a similar order was made by the Master of this Court In Execution Case No. 13 of 1964 on the application of Life Insurance Corporation of India the decree-holder in Special Appeal No. 299 of 1961 of the High Court, Allahabad. In all these three matters orders were made by the Courts passing the said decrees, attaching the decree obtained by Haridas Mundhra in Suit No. 600 of 1961 of this Court. The effect of the orders made by the Master of this Court under Order 21, Rule 53 of the Civil Procedure Code, was that the decree-holder Haridas Mundhra was prohibited and restrained from alienating, transferring or charging his right title and Interest in the decree in Suit No. 600 of 1961 and from obtaining satisfaction thereof.

7. Reference to one other proceeding will complete the chronology of the history of the litigation between the Parties. On February 3, 1965, Bank Hoff-man A. G. obtained a decree for 657,345-17-9d. with interest at 4 1/2% per annum from the date of decree, in the Queen's Bench Division. London, against Romani-go Holdings S. A. H. and the appellant.

This decree was transmitted for execution to the Court of the District Judge, Delhi, for attachment of 2295 shares of the company held by the appellant subject to any option rights of Haridas Mundhra with regard to the same in Suit No. 600 of 1961. The District Judge, Delhi, made an order for attachment of the said shares subject to the rights of Haridas Mundhra in Suit No. 600 of 1961. On January 19, 1966. the District Judge, Delhi, made an order directing the First National City Bank of New York, Calcutta, to receive 1588 shares of the company to be held to the order of the Delhi Court subject to Mundhra's option right and also an order against the Deputy Commissioner of Police Calcutta, to produce 707 shares of the company. It is not necessary to refer to these proceedings as the shares are now admittedly held by the Receiver appointed in Suit No. 2005 of 1965 on July 13, 1966.

8. On March 21, 1967, the appellant made the application out of which this appeal arises, praying for an order that the agreement dated October 30, 1956, and the decree dated February 25, 1964, do stand rescinded, for an order appointing a receiver and directing him to tender to Haridas Mundhra 2295 shares of the company upon payment to the Receiver of a sum of Rs. 86,60,000/- and for various other reliefs. In this application Masud J. made an order on July 14, 1969, whereby he held that Haridas Mundhra committed breach of the contract, which was directed to be specifically performed by the decree and that he created a situation which showed that he was never anxious to perform his part of the contract during the last 5 1/2 years. The learned Judge was also of the opinion that before passing an order for rescission of the contract, a date should be fixed within which Mundhra should be given liberty to perform his part of the contract. The Receiver appointed in Suit No. 2005 of 1965 was appointed Receiver of the shares and Mundhra was directed to pay Rs. 86,60,000/~ to the Receiver within a fortnight from the date of the order. Upon payment of the said sum the Receiver was directed to hand over 51 % shares of the company to Mundhra's Solicitors. If the amount was paid as directed by the order, the Receiver was further directed to make over the said sum to the appellant's Solicitors. The order also provided that Mundhra would take delivery of the shares subject to the decrees that had been passed against him and subject to the orders of attachment. Liberty was given to the appellant's Solicitors as also to the Solicitors of Mundhra to inform in writing the decree-holders, the Revenue Authorities and the attaching creditors of the substance of the order. The stay order made by Ray J. on March 2, 1964, was vacated and liberty was given to the Certificate Officer or the Tax Recovery Officer, 24-Parganas to take such steps against Mundhra as they thought fit. In default of payment of the sum of Rs. 86,60,000/- to the Receiver within a fortnight the contract dated October 30, 1956, and the decree dated February 25, 1964, including the order for injunction were to stand rescinded and the appellant was absolved from all obligations under the said contract or the decree. This appeal is directed against this order.

9. Various points have been canvassed before us by Mr. S. B. Mukherjee, learned counsel for the appellant. It was argued that the trial Court having come to the conclusion that Mundhra was never anxious to perform his obligations under the contract, or to carry out the obligations Imposed by the decree, the order directing him to take delivery of the shares and pay the price should not have been made. It was argued that once the Court came to the conclusion that it was a fit case for rescission of the contract, there was no scope for directing specific performance of the decree by payment of money and delivery of shares, There could not be, it was submitted, two orders in the alternative which were entirely contrary to each other. Once the Court came to the conclusion that the decree and the contract ought to be rescinded, it would be entirely inconsistent, with such an order, it was submitted, to require the parties to perform the obligations imposed by the decree and the contract.

10. Counsel for the appellant referred to the various impediments created by Mundhra which made it impossible for the decree to be performed by the parties. He referred to the suit filed by the company (Suit No. 2005 of 1965) claiming Rs. 1,27.67,052.16 and also a lien on the shares. He argued that this suit was filed by the Company at the instance of Mundhra, who was in control of the company, having purchased 49% of the shares already, and having an absolute control over the voting rights attached to 51% of the remaining shares. He submitted that if the corporate veil was lifted and pierced as it should be, there could be no doubt that the lien was claimed by the company at the instance of Mundhra, so that he could not be compelled to purchase the shares which were subject to the company's lien. He next referred to the several attachments levied on the decree. Attachment levied by the Certificate Officer, 24-Parganas and the stay of execution of the decree were obtained by reason of the default on the part of Mundhra in satisfying the income-tax demand. The attachments obtained by the various decree-holders were also the consequence of Mundhra's default in satisfying the claim of the decree-holders. Two of the three decrees with regard to which orders were made by the Master of this Court under Order 21, Rule 53 of the Civil Procedure Code on the same day namely April 10, 1964, were decrees made by the Second Civil Judge, Kanpur in Suit No. 173 of 1960 and No. 179 of 1960 of that Court. The plaintiffs decree-holders in these two cases were Kanpur Sugar Works Ltd. and the British India Corporation Ltd. in Suit No. 178 of 1960, and the Champaran Sugar Co. Ltd. and the British India Corporation Ltd. in Suit No. 179 of 1960. It was argued that the co-plaintiffs in both these suits were none other than the British India Corporation Ltd., the nominee of Mundhra, who held nearly the entire lot of 49% shares of the company. It was contended that this circumstance proved that the suits in the Kanpur Court were instituted, the decree obtained and attachments levied collu-sively, in order to create impediments to the performance of the decree in Suit No. 600 of 1961. It was next argued that the orders made by the Master under Order 21. Rule 53 of the Civil Procedure Code prohibited and restrained Mundhra from obtaining satisfaction under the decree and so long as these prohibitory orders restrained Mundhra from obtaining satisfaction of the decree, the order directing Mundhra to pay the price of the shares and take delivery of the share-scrips from the Receiver should not have been made by the trial Court. That order it was argued was made in violation of the order made by this Court under Order 21, Rule 53 of the (savca) Civil Procedure Code.

11. The next contention of counsel for the appellant was that in the earlier application made by the appellant for rescission of the contract and for performance of the decree, counsel for the respondent had contended that as the application was one for execution, it could only be made on a Tabular Statement. This contention of counsel for the respondent was accepted by Ray J., who dismissed the application, as it was not made on a Tabular Statement. In this case on the other hand, it was argued, respondent's counsel in praying for an order that Mundhra should be directed to pay the money and take delivery of the shares was doing nothing else than applying for execution of the decree without a Tabular Statement, and such a prayer should not have been acceded to by the Court below, having regard to the dismissal of the appellant's earlier application on the ground that it was not founded on a Tabular Statement.

12. The attachment orders dated April 10, 1964, and November 30, 1964, which have been set out in paragraph 21 of the petition restrain the decree-holder Haridas Mundhra from obtaining satisfaction of the decree. These orders restraining Mundhra from obtaining satisfaction of the decree remained in force at the time when the order under appeal was made by the Court below; and indeed they are still in force as they have neither been vacated nor varied, although the stay order made by Ray J. on March 2, 1964, was vacated with liberty to the Certificate Officer or the Tax Recovery Officer, 24-Parganas, to take such legal steps against Mundhra as they might be advised to take.

13. There is one other matter to which I should refer at this stage. The position taken up by Mundhra in answer to the appellant's earlier application was that he had entered into an agreement to assign and transfer the decree that might be passed in his favour in Suit No. 600 of 1961 to one Indra Kumar Daga. I set out below the relevant portion of his averment in paragraph 8 of the affidavit affirmed by him on September 6, 1965:

'By a writing dated 22nd February 1964, for valuable consideration I agreed to assign and transfer to Indra Kumar Daga the decree that may be passed in my favour in Suit No. 600 of 1961; by reason of the said agreement, on the passing of the said decree on February 25, 1964, the same stands assigned and transferred to the said Indra Kumar Daga. The said Indra Kumar Daga is the owner of the entire beneficial interest in the said decree.'

14. Thus the stand taken up by Mundhra was that he had no further interest in the decree by virtue of the agreement pleaded and set up by him. This matter in our view has considerable bearing on the issues involved in the application out of which this appeal arises.

15. On December 9, 1964, the liquidators of the vendor wrote to the Chairman of the company that 707 shares of the company, the certificate with regard to which were held by the company to the order of the liquidators, should be forwarded to the Solicitor of the vendor. This letter is to be found at p. 173 of Part I of the Paper Book. A similar letter was written by the vendor's Solicitor on December 22, 1964. The letter of December 22, 1964. was answered by the company's Solicitor on January 13, 1965. From this letter which is to be found at p. 175 of Part I of the Paper Book, it is clear that the company refused to make over the 707 shares on the ground that the said shares were the property of Mundhra, and also on the ground that the Income-tax Authorities had an interest in the shares as they had attached the benefit of the judgment in favour of Mundhra. The letter ended by saying that the company would not part with the shares even if Mundhra joined in the request for delivery of the share certificates to the liquidators of the vendor. In that letter again for the first time the company advanced a claim for lien on the shares. It is to be remembered that the decree in Suit No. 600 of 1961 was passed on February 25, 1964, whereby the contract for sale was directed to be specifically performed, and an injunction was issued restraining the defendant in the suit from exercising voting rights excepting in accordance with the instructions of Mundhra. By virtue of his holding of 49% of the shares of the company and the said order of injunction. Mundhra was virtually in absolute control of the company and the refusal to part with the certificates of 707 shares can no doubt be traced to this control exercised by Mundhra over the company. The object clearly was to make it impossible for the vendor to perform the contract in terms of the decree for specific performance.

16. The next matter to be referred to is the offer made by Mundhra to purchase 49% shares of the company. This offer was made by his letter dated November 29, 1955 (P. 63 of the Paper Book Part I). In Clause 9 of this letter he stated that it was agreed that the company would be entitled to pay Indian Super Tax payable under Section 23(A) of the Indian Income-Tax Act to the extent of Rs. 46,00,000/-. This makes it clear that the company was to pay out of its assets the said sum to the Income-tax Authorities on behalf of the share-holders of the vendor. But although Mundhra acquired the virtual control of the affairs of the company by reason of the course of events, he denied in paragraph 33 of the affidavit affirmed by him on September 22, 1967, that he was under any obligation to cause the company to pay income-tax up to Rs. 46,00,000/-.

17. Counsel for the appellant contended that Mundhra secured the advantage of ownership of 100% shares of the company, without being required to pay for 51% of the shares. By reason of the injunction regarding the voting rights attached to 51% of the shares, Mundhra's control of the company was absolute and comprehensive. Having thus secured the control of the company he was no more interested in paying Rs. 86,60,000/- as price of 51% of the shares because such payment would have brought him no additional benefit. In this state of things, it was argued, Mundhra did everything in his power to stop delivery of the shares in order to avoid payment of the large sum of Rs. 86,60,000/-. The first step taken by Mundhra to achieve this object was to stop delivery of the scrips relating to 707 shares, which admittedly were held by the company on behalf of the vendor. The next step taken by him, it was argued, was the claim by the company for lien on the shares for Rs. 1,27,67,052.16 alleged to have arisen out of the payment to the Income-tax Authorities for the liability of the vendor. This claim for lien was advanced, it was submitted, although the agreement clearly provided for payment by the company on account of the income-tax liabilities of the vendor. The next step taken by Mundhra, it was contended, was the application for appointment of a Receiver in Suit No. 2005 of 1965 (the Lien Suit) of the 51% shares of the company. A Receiver was appointed by the order dated July 13, 1966, but by that order it was provided that if Haridas Mundhra took the shares on payment of the price directed to be paid under the specific performance decree or under the directions of the Court of Appeal, the lien claimed by the company would shift to the money which the Receiver would receive from Mundhra. This order is set out at P. 209, Part I of the Paper Book. Under this order, it was contended, Mundhra had the option to take delivery of the shares from the Receiver upon payment of the price and if he was at all keen to obtain the shares upon payment of the money in terms of the contract and the decree for specific performance, he would have availed himself of this opportunity without any hesitation. The order was made on July 13, 1966, and the appeal against the order was not filed until July 22, 1966, but the company's prayer for stay of operation of the order dated July 13, 1966, was rejected by the Appellate Court. The appeal wag not heard and disposed of until September 2, 1968, and therefore. It was contended, between July 13, 1966, and September 1, 1968, Mundhra could have secured the shares upon payment of the price in terms of the decree. His failure to do so. It was argued, clearly established his unwillingness and refusal to perform the obligations imposed upon him by the decree for specific performance.

18. Mr. R. C. Deb, counsel for Haridas Mundhra (respondent No. 1) on the other hand contended that his client was justified in not paying Rs. 86,60,000/-and taking over the shares in terms of the order made on July 13, 1966, as this order was set aside by the Appellate Court and the direction upon the Receiver to deliver the shares to Mundhra upon payment of Rs. 86,60,000/- was no longer in force. He further argued that the decision of his client not to take the shares upon payment of the money to the Receiver between July 13, 1966, and September 1, 1968, was a commercial decision, the decision of a businessman not to take the shares upon payment of a large sum of money on the basis of an order which was under appeal. It was next contended that the order of the Appellate Court, setting aside the order of the trial Court regarding delivery of shares by the Receiver upon receipt of the money fully justified the decision of his client not to take the shares.

19. There Is no merit in this contention of counsel for the respondent No. 1 although there is good deal of force in it If Mundhra had a fraction of the keenness which he evinced hi instituting the suit for specific performance, and in obtaining the decree, he would not have allowed the opportunity to acquire the shares under the order dated July 13, 1966 to slip through his fingers. He would have lost nothing by taking the shares in terms of the order of July 13, 1966. For one reason or another he was not willing to pay the money and take the shares. It was argued by his counsel that the Receiver did not offer the shares to him and did not call upon him to pay the money. But he certainly knew of the order and also of the opportunity given to Mm by Court to take the shares on payment of the money. What order the Appellate Court would have made if he had taken the shares in terms of the order is a matter into which it is not necessary for us to speculate in this appeal. Looking at it as a decision of a businessman it cannot be supported except on the ground that he was no more eager to perform his obligations and to acquire the benefits under the decree, because it had given him the full control of the company without being required to pay for 51% of the shares. A businessman who files a suit for specific performance of contract to buy shares and prosecutes that suit to a successful termination in his favour, will not fritter away the benefit under the decree except for a higher and a superior advantage, and that advantage Mundhra got under the decree in Suit No. 600 of 1961. He therefore ceased to be interested any more in the (further obligations Imposed upon the parties by that decree, because under that decree he obtained a greater advantage than what he would have got by paying for the shares in terms of the contract for sale. But whatever might have been the motive of Mundhra in not taking the shares under the order of July 13, 1966, the question is even if he was willing to take the shares, was the Receiver in a position to offer delivery of the shares having regard to the terms of the order of July 13, 1966? I shall turn to this question later.

20. I now proceed to consider the question if the application is maintainable under Section 35(c) of the Specific Relief Act 1877 (hereinafter referred to as the old Act) and Section 28(4) read with Section 3(a) of the Specific Relief Act 1963 (hereinafter referred to as the new Act), and also Section 6(c) and Section 6(e) of the General Clauses Act 1897. In order to appreciate the rival contentions of the parties it is necessary to set out the relevant section of the Acts. Section 35(c) of the old Act is as follows:--

'35. Any person interested in a contract in writing may sue to have it rescinded and such rescission be adjudged by the Court in any of the following case, namely:--

(c) Where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase money or other sums which the Court has ordered him to pay .....

In the same case, the Court may, by order in the suit in which the decree hag been made and not complied with, rescind the contract either so far as regards the party in default, or altogether, as the justice of the case may require.'

The relevant provision in Section 28 of the new Act is as follows:--

'28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.-- (1) Where in any suit a decree for specific performance of a contract of the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require'. ....

(4) No separate suit in respect of any relief which may be claimed under this Section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be'.

21. It is necessary to refer to two other statutory provisions viz., Section 3 of the new Act and Section 6 of the General Clauses Act, 1897. The relevant part of the Section 3 of the new Act is as follows:

'3. Savings. -- Except as otherwise provided herein, nothing in this Act shall be deemed-

(a) to deprive any person of any right to relief, other than specific performance, which he may have under any contract'.

22. Section 6 of the General Clauses Act is as follows;

'Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not .....

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or .....

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;

And any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.'

23. Mr. R. C. Deb contended that the application by the vendor was not maintainable under Section 35(c) of the old Act He argued that Section 35(c) of the old Act could be invoked only when a default had been made in payment of the purchase money or other sum, the payment of which had been ordered by the Court In this case, no tune had been fixed by the Court, for payment of the price, and therefore there could be no default and if there was no default, an application for rescission under Section 35(c) of the old Act could not be made. In other words it was submitted that an application under Section 35(c) of the old Act could be made only when default had been made in paying the amount directed by the Court to be paid and unless such default was made, no application could be made by the aggrieved party. In this case since the Court had not fixed a time for payment of the price, there could be no question of default by Mundhra, and if there could be no default by Mundhra, the vendor could not either make or sustain an application under Section 35(c) of the old Act.

24. Mr. S. B. Mukherjee on the other hand contended that Section 35(c) of the old Act entitled his client to move this Court for rescission of the contract. He argued that Mundhra as the plaintiff in Suit No. 600 of 1961 obtained a decree for specific performance for sale of the shares and it was for him to offer the price within a reasonable time as the Court had not fixed any time for that purpose. He next argued that after the appointment of a Receiver of the shares by the order dated July 13, 1966, Mundhra should have paid the price to the Receiver, and taken delivery of the shares in terms of that order. Thirdly he argued that his client had written to Mundhra fixing a time and place for payment of money and delivery of shares but Mundhra failed to comply with that request. Therefore Mr. Mukherjee submitted that Mundhra had made the default contemplated by Section 35(c) of the old Act and the vendor could therefore move this Court for rescission of the contract.

25. The next contention of Mr. Deb was that Section 3(a) of the new Act did not confer upon the appellant the right to make this application. It was argued that the new Act came into force on March 1, 1965, and on that day the appellant had no present right to relief under the old Act. The right to relief under the old Act could arise only on a default made by the purchaser. The decree for specific performance, it was argued, was passed on February 25, 1964, without fixing a time for payment of the consideration for the shares; and therefore on March 1, 1965, the appellant had no existing right which would come under the saving provision in Section 3(a) of the new Act. The same argument was advanced by Mr. Deb with regard to Section 6(c) and (e) of the General Clauses Act. It was contended that the right contemplated by Section 6(c) and (e) of the General Clauses Act was an accrued and vested right and not an expectation of a right to accrue in future. In support of this contention reliance was placed by Mr. Deb firstly on a decision of the Judicial Committee Ogden Industries Pvt. Ltd. v. Heather Doreen Lucas, 1970 AC 113 (PC). In that case an employee suffered from heart disease which was accelerated by the nature of his employment and in consequence of which he died on July 7, 1965. He left surviving him a widow and two children dependent upon him. Compensation payable to the dependants would normally have been calculated according to the Workers' Compensation Act, 1958. but that Act was amended by the Workers' Compensation (Amendment) Act, 1965, which became operative on July 1, 1965. The Amendment Act increased the benefits payable to dependents and the question was whether the dependants were entitled to the increased benefits under the Amending Act or under the Act of 1958 under which the compensation was much lower. It was held that the dependants had no right in law before death and therefore the right of the dependants and the liability of the employer was to be ascertained at the date of death and on that date the employer's obligation was to pay the larger compensation under the Amending Act. It may be mentioned that the provisions in Section 6(c) and (e) are identical with the provisions in Section 7 (2) (c) and fe) of the Interpretation Act 1958, which was construed by the Judicial Committee in that case. Referring to the provisions of the Interpretation Act, Lord Upjohn held that the object of that Act was to preserve the right, and privileges acquired or accrued on the one side and the corresponding obligation or liability incurred on the other. It was further held that the Interpretation Act had no application in that case and that the rights of the depend-dants were to be ascertained at the date of the death, on which date the obligation of the employer was to pay the larger compensation under the Amending Act-The next case relied on by Mr. Deb on this point was also a decision of the Judicial Committee Director of Public Works v. Ho. Po. Sang, (1961) 2 All ER 721. In that case a person held a Crown lease in respect of a premises in Hong Kong which expired in December 1951. He applied for renewal of the lease, and it was agreed between him and the Director of Public Works that he was to develop the site by erecting buildings. On such development he was then to have a new lease for a term of 75 years. The erection of the new buildings necessitated the demolition of the existing buildings which were occupied by tenants. Under the relevant provisions of an Ordinance in force if a Crown lessee wished to demolish existing buildings he could recover vacant possession after the Director of Public Works granted a re-building certificate. Under the Ordinance when a Director of Public Works gave notice of intention to grant a re-building certificate the lessee could serve a notice on the tenants who could within three weeks thereof appeal to the Governor against the proposal to give a re-building certificate and the lessee was given the right to file a cross-petition. Every such petition and cross-petition was to be taken into consideration by the Governor who had absolute discretion to give or withhold a re-building certificate. The lessee applied to the Director for a certificate and the latter gave notice of his intention to give such certificate. The tenants and subtenants of the premises appealed to the Governor and this appeal was followed by a cross-petition by the lessee. On April 9, 1957, the relevant statutory provisions were repealed though on that date the Governor had not come to a decision on the appeal and the cross-appeal. No provision was made for dealing with pending petition, and cross-petition, or for giving of a building certificate sub sequently. Under Clause 10 of the Interpretation Ordinance the repeal of an enactment was not to affect the previous operation of anything duly done or any right acquired under any enactment so repealed. After the repeal the Governor directed the issue of a re-building certificate, which was given by the Director of Public Works. The lessee thereupon served notice to quit on the tenants and sub-tenants. The tenants and sub-tenants sought a declaration that after repeal of the relevant statutory provisions the Director had no legal authority to issue a re-building certificate. It was held that the lessee had no accrued right on the day of the repeal of the statutory provisions because a mere notice by the Director to issue a re-building certificate did not confer any right on the lessee as various conditions were to be fulfilled before the certificate could be granted and that the right of the lessee to have the matter considered by the Governor was not an accrued right or privilege and further that the steps taken by the lessee towards getting a re-building certificate before the repeal were rendered abortive by the repeal. Relying upon this decision Mr. Deb contended that the rights contemplated by Section 3 of the new Act and Section 6(c) of the General Clauses Act were accrued rights, and not a mere expectation. The next case referred to by Mr. Deb was Hamilton Gell v. White, (1922) 2 KB 422. In that case a landlord of an agricultural holding gave notice to his tenants to quit as he wished to sell the holding. Under the relevant statutory provisions the tenant was entitled to compensation subject to two conditions, one of which was that he should give within 2 months of the notice to quit, a notice to the landlord of his intention to claim compensation and the second condition was that he should make his claim for compensation within 3 months after quitting the holding. The tenant gave notice of his intention to claim compensation within the time limit but before the tenancy expired, the relevant statutory provision was repealed. He subsequently gave notice as required by the statute. It was held that notwithstanding the repeal, the tenant was entitled to claim compensation by virtue of the provisions in the Interpretation Act as he became entitled to the investigation by an arbitrator as soon as he gave a notice of his intention to claim compensation and that his right was not an absolute right and that a specific right had accrued to the tenant as the necessary event happened, namely the notice by the landlord to the tenant to quit as the landlord wished to sell the holding. Relying on this decision it was contended that the provisions in the General Clauses Act and the new Specific Relief Act protected an accrued right and on the date the decree for specific performance was passed the appellant had no such accrued right because there was no default on the part of Mundhra. On this question reliance was also placed by Mr. Deb on .

26. The next case relied on by Mr. Deb was Abbott v. Minister for Lands, 1895 AC 425. In that case the appellant purchased some Crown land under Section 25 of the Crown Lands Alienation Act. Subsequently he took up a conditional purchase adjoining the area he already held and thereafter he tendered an application for a further additional conditional purchase of another area. It was held that a mere right existing at the date of a repealing statute, to take advantage of the provisions of the statute repealed was not a 'right accrued'.

27. Relying on the decisions mentioned above Mr. Deb argued that Section 35(c) of the old Act has no application in this case, inasmuch as a pre-condition to the application of that section was that there should be a default by the purchaser in payment of the purchase money or any other sum directed by the Court. In this case there could be no such default, as no time was fixed by the Court for payment of the money. It was submitted that unless time was fixed by the Court for payment of the price of the shares, there could be no question of default.

28. With regard to the savings provided in Section 3 of the new Act and the right contemplated by Section 6(c) and (e) of the General Clauses Act, it was submitted that the right contemplated by those provisions was an accrued right, that is to say a right which could be enforced forthwith. It was argued that on the day the decree for specific performance was passed there was no such accrued right as could be enforced forthwith. It was submitted that on the decree being passed the appellant did not acquire the right to apply for rescission of the contract on the ground that there was default in payment of the purchase money.

29. In support of the contention mentioned above Mr. Deb also relied on an unreported Bench decision of this Court in Appeal No. 46 of 1965 (Call Mrs. R. S. Pugler v. Sachindra Nath Bank. In that case the appeal arose out of an order made in an application for setting aside a decree for specific performance and also for a declaration that the decree-holder was no longer entitled to specific performance of the contract for sale of a premises. It was held that before the Court could make an order under cl. (c) of Section 35 of the old Act, it must be satisfied that the purchaser had made default in payment of the purchase money or any other sum which the Court had ordered him to pay and that there could be no default unless a time limit had been fixed or an order had been made directing something to be done within that time. It was also held that the expression 'in the same case' in the last paragraph of Section 35 of the old Act could only refer to the case specified in Clause (c). i.e., where a purchaser or lessee made default in payment of the purchase money or other sums which the Court had ordered him to pay. In order to appreciate this contention it is necessary to set out the last paragraph of Section 35 of the old Act which is as follows:--

'In the same case, the Court may, by order in the suit in which the decree has been made and not complied with rescind the contract, either so far as regards the party in default, or altogether, as the justice of the case may require.'

30. The decision mentioned above is an authority for the proposition that there could be no default unless a time had been fixed or an order made directing something to be done within that time and also for the proposition that unless there was such a default an application for rescission in the suit could not be maintained. We respectfully agree with this view of the Division Bench. In our opinion, default in payment of the purchase money or other sums ordered by the Court to be paid by the purchaser is a condition precedent to an application for rescission of a contract under Section 35(c) of the old Act We are also of the opinion that there can be no default unless a time has been fixed by the Court for payment.

31. Counsel for the appellant, on the other hand contended firstly that there was nothing in Sub-section (c) of Section 35 of the old Act to warrant a conclusion that fixing of a time for payment by the Court was a condition precedent to the making of an application for rescission. He argued that to hold that fixing of a time by the Court for payment of the purchase money or of any other sum was a condition precedent to an order of rescission would have effect of reading into that section something which is not there. I cannot accept this contention, because default in payment of the purchase money contemplated by Sub-section fc) implies failure or omission to pay within a specified time and there can be no default unless time has been fixed for payment of the money. Mr. Mukherjee, however, next contended that under the last paragraph of Section 35 the appellant was entitled to maintain this application for rescission because the default contemplated by the last paragraph was not a default in payment of the purchase money or any other sum which the Court had ordered the purchaser to pay, but it was any default on the part of either party. In other words he submitted that any failure or omission on the part of either party to the contract which had been decreed to be specifically performed, would be a default under the last paragraph of Section 35 of the old Act. He next argued that a breach of contract on the part of a party to the contract would be a default under the last paragraph of Section 35. Haridas Mundhra in this case, it was argued, committed a breach of the contract because he failed to perform the contract by paying the price of the shares and taking delivery of the same. Secondly Mundhra set up the company to file a suit claiming lien on the shares, which claim was re.iected by the trial Court and the Appellate Bench of this Court, Thirdly Mundhra caused attachment of the decree to be made by his creditors who had obtained decrees against him for non-payment of the decretal dues and also by the Income-tax Department for failure to pay his tax liabilities. These acts or omissions on the part of Haridas Mundhra. it was submitted, were breaches of contract on his part or at any rate a default contemplated by the last paragraph of Section 35 of the old Act.

32. In support of the contentions mentioned above reliance was placed by Mr. Mukherjee on the same decision of this Court in Appeal No. 46 of 1965 (Cal) (supra). Reliance was also placed on the unreported Bench decision of this Court in A.F.O.O. No. 286 of 1965 (Cal), M/s. Hungerford Investment Trust Ltd. v. Haridas Mundhra, which is to be found at p. 193 of Part I of the Paper Book. Mr. Mukherjee referred to the observation in the judgment in Appeal No. 286 of 1965 (Cal) that before an order for rescission could be made one of two things must be shown, namely that either there must be a date fixed for payment of the purchase money and completion by a purchaser or it must be shown that the purchaser's conduct had been such that it was useless to ask him to perform the decree because he was wholly unable to perform it or had deliberately refused to perform it. It was argued that the facts in the present case fulfilled the second condition namely that it was useless to ask Mundhra to perform the decree because it was he who had caused impediments to be created by the claim for lien by the company, and secondly because he had caused creditors to attach the decree, and had failed to remove the attachment by payment of the decretal amount. Furthermore, it was argued that the conduct of Mundhra justified the conclusion that there was deliberate refusal on his part to perform the contract.

33. The interpretation sought to be put by counsel for the appellant in the earlier portion of the judgment in Appeal No. 286 of 1965 (Cal) however is not borne out by what has been said later in that judgment. The learned Judges dealt with submissions of counsel which appear to have met with their approval. But the position was made clear in the later portion of the judgment in which after referring to Article 1173 of Fry on Specific Performance it was held firstly that an order for rescission could be made only if there was a direction for payment and default was made in complying with this direction and further that the law in India was codified in Section 35 of the Specific Relief Act. I set out below the relevant portion of the judgment:--

'The order for rescission in default of completion within a limited time can if at all only be made if there is a direction for payment and completion by a certain time failing which rescission can be effective. In our opinion, the law, so far as we are concerned, is codified in Section 35 of the Specific Relief Act and as we read the section the Court may make an order rescinding the contract where there already has been a direction under a decree which has not been, com-plied with.'

34. Reading the two judgments as a whole we do not find any support in them for Mr. Mukhcrjee's contention that an application for rescission under Section 35(c) of the old Act can be made by either party on any default other than default in payment of the purchase money or any other sum directed to be paid by the Court. There is nothing in our view, in either of the two unreported decisions to warrant the conclusion that an application for rescission can be made even if the default was not a default in payment of the purchase price and was a default in other respect and in other matters.

35. We respectfully agree with the view expressed by the Division Bench that the law so far as this country is concerned was codified in Section 35 of the old Act and the conditions prescribed in that section must be fulfilled in order to successfully maintain an application for rescission of the contract under Section 35 of the old Act. In order to maintain such an application there must be default in payment of the purchase money or other sums directed to be paid by the Court, and such default can occur only if a time has been fixed by the Court for payment; and if no time has been fixed by the Court there could be no such default as to enable a party to obtain an order for rescission. We are also of the opinion that the default contemplated by the last paragraph of Section 35 is referable to and confined to the default in payment of purchase money or other sums as contemplated by Sub-section (c) of that section and not a default by a party in other respect. The word default used in the last paragraph of Section 35, must be given the same meaning which it has in Sub-section (c). and not a different meaning unless such is required by the mandate of the statute or by the necessary implication or intendment. Refer-ence was made by counsel for both the parties to the meaning of the word de-fault in Stroud's Judicial Dictionary 3rd Edn., Vol. I, pp. 757 and 759. While Mr. Mukherjee relied on the meaning of the word default at p. 757 which is 'to cm-brace every failure by the defendant to perform his contract unless prevented by superior force over which he had no control, such as stress of weather'. Mr. Deb relied on another meaning given at p. 759 'which is non-payment in due time' and 'failure to pay at the due date'. Keeping in view these definitions we cannot but come to the conclusion, that default contemplated by Section 35(c) and the last paragraph of that section means, failure or omissions to pay by a date fixed by the Court. In this case no order has been made fixing a time for payment oi the purchase money and therefore there has been no default, and indeed there could be no default, under Sub-section fc) of Section 35 of the old Act We are also of the opinion that the default contemplated by the last paragraph of Section 35 is a default in payment of the purchase money or sums directed by the Court to be paid and not any other default; and as there has been no default in payment of the purchase money or any other sum on the part of Mundhra, the contention of counsel for the appellant that Mundbra is guilty of various other defaults, which entitled the appellant to maintain this application cannot be accepted. For these reasons we hold that the application is not maintainable under Section 35(c) of the Specific Relief Act 1877.

36. I now proceed to consider if the application is maintainable under Section 28 of the Specific Relief Act 1963, Section 28 of the new Act is headed:

'Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.'

On a construction of Sub-section (1) of this section it is clear to us that it is confined only to sale or lease of immovable property and does not cover agreements for sale of movables. It was argued, however, by counsel for the appellant that Sub-section (1) of Section 28 covers contract for sale of both movable and immovable properties. Therefore it was submitted, even if the application was not maintainable under Section 35(c) of the old Act, it could be maintained under Section 28(1) of the new Act

37. Mr. Deb on the other hand submitted that on a plain reading of Section 28(1) of the new Act it would be clear that it was confined to contracts for the sale of immovable property only and did not apply to contracts for the sale of movables. In our opinion Mr. Deb is right in his contention that the sale contemplated by Section 28(1) of the new Act is a sale of immovable property only and does not cover a contract for the sale of movables. The use of the article 'the' before the word 'sale' is significant and to our mind that makes it all the more clear that Sub-section (1) of Section 28 is confined only to a contract for the sale of immovable property.

38. The decree for specific performance was passed on February 25, 1964, and the Specific Relief Act 1877 i.e., the old Act was repealed by the Specific Relief Act 1963, i.e., the new Act, which came into force on March 1, 1964. The old Act remained in force only for a period of four days from the date of the decree. The application out of which this appeal arises was made on March 21, 1967. I have already dealt with the question whether Section 3 of the new Act saves the appellant's right to maintain this application under the old Act and it is therefore not necessary for me to revert to that topic again. The question to be considered is whether this application is maintainable under Section 28 of the new Act. I should note here that the trial Court came to the conclusion, and I think rightly, that the application is not maintainable under Section 28(1) of the new Act. But in our view the trial Court was in error in coming to the conclusion that the appellant's right to maintain the application under Section 35(c) of the old Act was protected and preserved by Section 3 of the new Act and Section 6(c) and (e) of the General Clauses Act 1897. We hold that the appellant's right to maintain this application was not preserved and protected by Section 3 of the new Act and Section 6(c) and (e) of the General Clauses Act.

39. A large number of cases were relied on by counsel for the parties in support of their contentions regarding the maintainability of the application. In view of what I have held above, and more particularly in view of the submission made by counsel for the appellant that his client was confining his prayer in this appeal to an order for rescission only and that he was not asking for an order for performance of the contract, it is not necessary for me to deal with the cases relied upon by counsel for the parties. I shall, however, refer to the cases relied upon on the question of maintainability of the application. Mr Mukherjee relied on : AIR1966Cal107 and AIR 1923 Bom 26.

40. Mr. Mukheriee had also relied on two English decisions in support of his proposition that specific performance of a contract might be directed against a third party who was a creature of one of the parties to the contract. But since the appellant is no more interested in an order for performance of the obligation under the decree, it is not necessary for me to deal with these cases. These decisions are reported in (1962) 1 All ER 442 and (1948) 1 Ch 452. In this connection I should refer to one decision relied upon by Mr. Deb reported in AIR 1923 Mad 284 for the proposition that where a dispute as to title of property was raised directions might be given that specific performance should stand over until the dispute has been adjudicated upon. In support of his contention that Mundhra could not claim to have the shares free from encumbrance as that was a new term not included in the contract Mr. Mukherjee relied on the decision of the Judicial Committee reported in (1886) 14 Ind App 173 (PC) and AIR 1925 Cal 324. These decisions are also of no relevance in this appeal as the appellant is not asking for an order for performance of the contract.

41. Before leaving this question 1 should refer to a contention of counsel for the parties based on the statement of the law in Fry on Specific Performance 6th Ed. relating to performance of a contract on which a decree for specific performance has been passed. Mr. Deb referred to Art. 1173 at p. 547 for the proposition that the Court might make an order appointing a definite time and place for completion of the contract by payment of the unpaid purchase money and delivery of the conveyance and title deeds or a period within which the judgment was to be obeyed and if the other party failed to obey the order, might thereupon at once issue a Writ of sequestration against the defaulting party's estate and effects. It was argued by Mr. Deb that the trial Court was entitled to do. what it had done namely fixing a date for payment of the price and delivery of the shares. I need not deal with this question at all because counsel for the appellant made it clear that his client was not asking for performance of the contract; and that being so. it is not necessary for us to go into the question if the trial Court was right in giving directions for payment of price and delivery of the shares in performance of the contract.

42. Mr. Mukheriee, however, relied upon Art. 1173 at p. 547 in support of his contention that an application could be made to the Court which passed the decree for an order rescinding the contract and if on such an application being made, it appeared that the party moved against had positively refused to complete the contract, its immediate rescission might be ordered; otherwise, the order would be for rescission in default of completion within a limited time. It was argued by Mr. Mukherjee that on the materials in this application there could be no doubt that Mundhra had positively refused to complete the contract and therefore the order for rescission should be made.

43. It seems to us that the trial Court in directing payment to the Receiver and delivery of the shares and transfer deeds by him to the purchaser, and in default directing rescission of the contract had relied on the statement of the law in Art. 1173. p. 547 of Fry. In our view, however, the law in this country regarding rescission of a contract with regard to which a decree for specific performance has been passed, is codified in Section 35(c) of the old Act and Section 28 of the Specific Relief Act. 1963. to which I have referred earlier in this judgment Where, as in this case, there is clear statutory provision, it is not open to Courts in this country to look to English com-!mon law for guidance in matters covered by the mandatory statutory provision. As I have dealt with the question oJ maintainability of this application, earlier in the judgment, in the light of the provisions in the old Act and the new Act, it is not necessary for me to say anything more on this subject.

44. This appeal could have been disposed of on the basis of our conclusion on the question of maintainability of the application. But since several other questions have been raised, we now proceed to deal with the same. The first of such other questions to be dealt with is if the application was barred by res judicata or principles analogous thereto. That was a point raised by Mr Deb who contended that the questions sought to be raised by the appellant in this application have either been decided and disposed of by the judgment delivered by the Division Bench in the earlier application, or should be deemed to have been raised and disposed of in such application and therefore barred by res iudicata under Explanation 4 of Section 11 of the Civil Procedure Code.

45. Mr. Deb elaborated this point by laying that the grounds relied on in this application were the same as those In the earlier application, which was dismissed by the trial Court on September 28, 1965. and the appeal against this dismissal order was also dismissed by the Division Bench on August 18, 1966. Inasmuch as the same grounds were sought to be relied on, in the application out of which this appeal arises, the application was barred by res judicata. The Division Bench came to the conclusion, it was argued, that there was no default on the part of Mundhra as no time was fixed by the Court for payment of the purchase money and no offer was made by the appellant to deliver the shares to Mundhra. On the question of the orders of attachment obtained by the decree-holders in the Kanpur and Allahabad decrees and the order for stay of execution obtained by the Income-tax Department, it was submitted that those were questions which were raised in the earlier application and have been dealt with by the Division Bench in dismissing the appeal, and as such it could not be urged by the appellant in this application that the attachment orders and the stay order constituted a bar to the performance of the contract under the decree.

46. Mr. Mukherjee on the other hand contended that although the facts pleaded in the earlier application which ended in dismissal, were also pleaded in this application, various important materials, as also facts, which were not in existence at the time when the first application was moved, were the basis for the relief asked for in this application. Secondly he argued that the Division Bench in dismissing the appeal arising out of the first application, had held that the prayers in that application could not be granted on the materials set out in the petition, and the order of dimissal was made by the Division Bench without prejudice to the appellant's rights to make a further application on proper materials. Therefore it was argued, the appellant was entitled to make a second application on fresh and proper materials and that is what it had done. Thirdly it was argued that the main prayer in the first application was for an order that Mundhra do complete and obey the decree dated February 25, 1964, by paying Rs. 86,60,000/-being the unpaid purchase money for 51% of the shares and that the appellant do make over transfer deeds in respect of the said shares to Mundhra and in default the contract do stand rescinded. The main prayer on the other hand in the application out of which this appeal arises was an order for rescission of the contract followed by subsequent ancillary prayers that a Receiver be appointed and also that the shares be delivered by the Receiver to the purchaser upon payment of the said sum of Rs. 86,60,000/-. These facts Mr. Mukherjee contended distinguished the application, out of which this appeal arises, from the first application, and the principles of res judicata or principles analogous thereto did not bar the appellant's application. In support of his contention Mr. Mukherjee relied on Kishore Bund Mohunt v. Dwarkanath Adhikari (1894) 21 Ind App 89 (PC). In that case it was held that where a plaintiff's application under Section 260 of the Civil Procedure Code for execution of a decree was dismissed on the ground that the defendant did not have the opportunity of obeying the decree, a second application after such opportunity had been afforded was not barred by res judicata. Reliance was next placed by counsel for the appellant on Parsotam Gir v. Nar-bada Gir, (1899) 26 Ind App 175, in which it was held that where a former suit between the same parties in the same Court and for the same relief resulted in a decree of dismissal, the judgment leaving it open to the plaintiff to bring a fresh suit and leaving 'untouched and undecided all matters' affecting the rights of the parties, such a decree, did not constitute res judicata as it was not a final decision in the suit

47. Mr. Deb on the other hand relied on a Bench decision of the Patna High Court reported in AIR 1938 Pat 427. In that case a decree was obtained on a loan which was secured by a mortgage. On the property being sold in execution, objections were taken by the judgment-debtor under Section 47 of the Civil Procedure Code as to the validity of the execution proceeding on the ground that no sanction was taken from the Commissioner under Section 12-A of the Chota-nagpur Encumbered Estate Act. Although objections were taken they were not decided and the objection petitions were dismissed and possession was taken by the purchaser. A suit was brought for a declaration that as there was no sanction of the Commissioner the sale was void. It was held that since the point was raised in the objection petitions though not decided, the point was barred by res judicata under Expl. 4 to Section 11 of the Civil Procedure Code. Reliance was next placed by Mr. Deb on a decision of the Supreme Court Mohanlal Goenka V. Benoy Krishna Mukherjee, : [1953]4SCR377 . In that case the Supreme Court approved of the Division Bench decision of the Patna High Court mentioned above and a Calcutta decision in 38 Cal WN 141 = (AIR 1934 Cal 472) and held that if a judgment-debtor failed to raise objection to execution on the ground that the execution Court had no jurisdiction to execute the decree, the failure to raise the objection precluded him from raising the plea of jurisdiction on the principle of constructive res judicata after the property waa sold to the auction-purchaser who had entered into possession. Reliance was placed by Mr. Deb on another decision of the Supreme Court Devilal Modi v. Sales Tax Officer, Ratlam, : [1965]1SCR686 . In that case it was held that the rule of res judicata applied to writ petition in which infringement of fundamental right was alleged and that considerations of public policy could not be ignored and that the basic doctrine that judgments of the Supreme Court were binding and must be regarded as final between the parties in respect of matters covered by them must receive due consideration. I do not see any relevance of this case on the question of res judicata so far as this appeal is concerned.

48. The principles laid down In the cases relied upon by the parties mentioned above are well established and there can hardly be any dispute with such principles. But the question before us is whether in the facts of this case it can be said that the application is barred either under Section 11 of the Civil Procedure Code or under Explanation IV thereto. It cannot be overlooked that the Division Bench in dismissing the appeal was of the view that there were not sufficient materials in that application for an order as prayed for and for that reason, gave liberty to the appellant to make another application on proper materials.

49. Before proceeding to examine If any fresh relevant materials have been pleaded in the petition, I should note that on several pertinent and, important questions the Division Bench refrained from expressing its view as it was of the opinion that for the purpose of that appeal it was not necessary to express any view. In the first place on the question of applicability of Section 35 of the old Act and Section 28 of the new Act. the Division Bench did not express any final opinion and therefore refrained from examining the authorities on which reliance was placed by the parties to that appeal. In the second place It was recorded in the judgment that whether the appellant was in a position to place the shares at the disposal of Mundhra was not clear from the affidavit and therefore the Division Bench did not go into that question.

50. There is another matter which has some bearing on the question of res judicata. An application was made under Article 133 of the Constitution of India lor leave to appeal to the Supreme Court against the judgment and order of the Division Bench dismissing the appeal arising out of the first application. On that application leave to appeal to the Supreme Court was refused by Masud and Banerjee JJ. on the ground that the rights between the parties were not finally decided by the order on the earlier application and that the appellant had a right to make a fresh application on proper materials. It is true that the finality of an order contemplated by Article 133 of the Constitution has nothing to do with the question of res judicata, because although an order may not be a final order for the purpose of Article 133 of the Constitution, yet it may operate by way of res judicata or principles analogous thereto on the ground that questions sought to be agitated in a later proceeding have either been decided in the earlier proceeding or sought to have been so decided. Section 11 of the Civil Procedure Code contemplates a final decision of a matter in an earlier proceeding, but finality for the purpose of Section 11 of the Civil Procedure Code is not necessarily the same finality as is contemplated by Article 133 of the Constitution. But in considering the finality contemplated by Section 11 of the Civil Procedure Code, it is to be noticed that the claim made by the appellant in the first application was not finally decided by the Division Bench, as proper materials were not before the Court and the Court expressly granted leave to the appellant to make another application on proper materials.

51. Mr. Deb, however, contended that if the Court had adjudicated upon certain issues in an earlier proceeding or if such issues were matters which ought to have been raised in the earlier proceeding, the Court could not by an order save a subsequent proceeding from being barred by res judieata merely by making such an order. In other words he argued that if the principles of res judieata were attracted to a particular proceeding, the bar could not be removed by an order made in the earlier proceeding that a further proceeding could be brought on the same subject-matter. In support of this contention reliance was placed by Mr. Deb firstly on Robert Watson and Co. v. Collector of Zillah, Rajshahye, (1869-70) 13 Moo Ind App 160 (PC) and also another decision of the Judicial Committee Fateh Singh v. Jagannath Bakhsh Singh, 52 Ind App 100 = (AIR 1925 PC 55). But in both those cases a final decision was made by the Court although it was stated that the order was not to be a bar to a subsequent proceeding. In this case, on the other hand, it is true that the Division Bench dismissed the appeal, but at the same time the order makes it clear that the dismissal was because of want of proper materials and leave was granted to the appellant to make a fresh application on proper materials. I shall now proceed to examine what are the fresh materials on which the appellant applied for relief in this application and if such materials are relevant materials for the purpose of the application.

52. In the first place the lien suit was filed by the company on November 15, 1965, and the first application was made on August 30, 1965, and therefore the company's claim for lien and the allegation that the lien suit has been instigated and inspired by Mundhra was not made in the first application. Secondly the question if the company's claim for lien was an Impediment to the performance of the contract and the further question whether Mundhra was entitled to the shares free from encumbrance were not raised in the earlier application. Thirdly the appellant's contention that Mundhra is obstructing the performance of the decree by causing the lien suit to be instituted by the company and thereafter by having a Receiver appointed in the said suit to hold the shares and that such obstruction by Mundhra was evidence of his unwillingness and inability to perform the decree was not raised by the appellant in the first application.

53. The next new matter raised by the appellant in this application is the dismissal of the lien suit and discharge of the Receiver by the trial Court. The company preferred an appeal against the order of dismissal of the suit and the Receiver appointed by the trial Court was continued. The appeal preferred by the company, it is alleged, was at the instance of Mundhra and was further evidence of his unwillingness and inability to obey the decree and was therefore a ground for rescission of the contract.

54. The next fresh material used in the present application was that the order dated July 13. 1967, appointing the Receiver gave liberty to the Receiver to tender the shares to Mundhra in performance of the appellant's part of obligation under the decree and it was further directed that the claim for lien, if any, of the company should shift to the sum of Rs. 86,60,000/- which was the purchase price of the shares. It was contended that Mundhra could have taken the shares from the Receiver by payng the agreed price. The next fresh matter in this application was a letter dated January 11, 1966, from the appellant to Mundhra requesting the latter to take delivery of the shares in terms of the order dated July 14, 1967, appointing the Receiver and the reply by Mundhra's Solicitor dated January 25, 1966, by which it was made clear that Mundhra refused to perform the decree by taking delivery of the shares on the ground that the company had a lien on the shares.

55. The materials mentioned above are in my view, undoubtedly fresh materials which were not, and indeed could not be used as grounds in the first application. Without a doubt these are relevant materials and the appellant is entitled to agitate the questions in this application. If these materials are such that they could have been and ought to have been used in the first application, It would have been open to counsel for the respondent No. 1 to contend that the application was barred by the doctrine of constructive res judicata. But such Is not the case here. These are materials which were not in existence at the time when the first application was moved, and could not therefore have been used as grounds for the first application. Secondly If the grounds based on these materials (if they were in existence) were taken as grounds in the first application and the Court did not give any finding on these grounds it would again have been open to counsel for the respondent No. 1 to contend that the application is barred by res judicata. But as I noticed above the materials were not in existence at all and were not used, and indeed could not have been used as grounds in the first application. On the other hand absence of proper materials is the ground on which the Division Bench dismissed the appeal and in making the dismissal order the Division Bench protected the right of the appellant to make a further application on proper materials. In these facts we cannot hold that the application is barred by res judicata or principles analogous thereto.

56. I now proceed to deal with the next contention of Mr. Mukherjee that Mundhra cannot be allowed to approbate and reprobate, to blow hot and cold at the samt time in the same proceeding. The first limb of this argument was that after the conclusion of the hearing before the trial Court, but before judgment was delivered, counsel for Mundhra had submitted to the Court that his client was prepared to take the shares as the appeal No. 286 of 1965 arising out of Suit No. 2005 of 1965 (Lien Suit) was dismissed. Mr. Mukherjee submitted that counsel for Mundhra then stated that since the trial Court and the Division Bench dealing with the appeal had come to the conclusion that there was no Hen of the company on the shares, Mundhra was ready and willing to take the shares upon payment of the price in obedience to the decree. Mr. Mukherjee contended that it was on the basis of this prayer that the trial Court had given directions in the order under appeal, appointing a Receiver of the shares and directing Mundhra to take delivery of the shares from the Receiver and pay the price to him. Mr. Mukherjee contended that counsel for Mundhra, had throughout strongly resisted performance of the contract under the decree on various grounds namely the bar created by the orders of attachment, the order made by Ray J., restraining execution of the decree in aid of the certificate proceeding and the appellant's inability to deliver the shares free from encumbrance by virtue of the company's claim for Men.

57. The next limb of the argument on this aspect of the case was that while in the first application Mundhra had resisted any order being made on that application on the ground that the application was one for execution of a decree, and for that reason, should have been made on a Tabular Statement, in this application on the other hand, although it was not an application on a Tabular Statement, counsel for Mundhra had submitted that an order for execution of the decree should be made by directing Mundhra to pay the price and take delivery of the shares.

58. It was submitted that Mundhra could not be allowed to approbate and reprobate, to blow hot and cold to the prejudice of the appellant inasmuch as he was resisting performance of the contract on various grounds and at the same time prayed for performance of the same contract by delivery of the shares and payment of the price.

59. In dealing with the above contention I should take notice of one fact which appears to me to be of considerable importance so far as this appeal is concerned. Mr. Mukherjee made it clear to us that if no rescission was granted in this application in terms of prayer (b) he was not asking for orders on the basis of the prayer (d) which is a prayer for appointment of a Receiver, prayer (e) which is a prayer for vacating and/or varying the attachment orders and the injunction issued by Ray J., prayer (f) which is a prayer to submit a Tabular Statement, prayer (g) which is also a prayer for a Receiver, prayer (h) which is a prayer for an order directing the Receiver to tender the shares to Mundhra and for an order directing Mundhra to pay the Receiver the sum of Rs. 86,60,000, prayers (i) to (k) which are prayers ancillary to the delivery of the shares and prayer (l) which is a prayer for an order that if Mundhra failed to pay the money to the Receiver then the decree do stand rescinded. While making it clear that he was not abandoning the above prayers, he stated, that he was not asking for or pressing for an order in terms of those prayers in this appeal. He, however, also made it clear that his client was aggrieved by the order of injunction, whereby it had been restrained from selling the 51% shares of the company to any one other than Haridas Mundhra and from exercising voting lights in respect of these shares except in accordance with the directions of Haridas Mundhra. Keeping In view Mr. Mukherjee's contention that the appellant was no more interested in the performance of the contract and also the fact that Mr. Mukherjee made it clear that his client was only interested in an order for rescission and nothing else, we do not think that we need go into the argument advanced by Mr. Mukherjee on the question of approbation and reprobation, as those arguments were directed against Mundhra's conduct in opposing delivery of the shares on various grounds and his subsequent willingness and readiness to take delivery of the shares upon payment of the purchase price. In support of his contentions on approbation and reprobation Mr. Mukherjee relied on the decisions : [1956]1SCR451 , : AIR1968AP336 and : AIR1963Cal132 . In the view we have taken of the submissions made on behalf of the appellant regarding the prayers in the petition, it is not necessary for me to deal with these decisions in this judgment.

60. Turning now to Mr. Mukher-jee's prayer that the decree of injunction in Suit No. 600 of 1961 restraining the appellant from selling the shares to any one other than Mundhra, and also restraining it from exercising voting rights except in accordance with the directions of Mundhra, I have no hesitation in saying that the decree for injunction can neither be varied nor vacated in this appeal. The decree by which the injunction was issued has become final. An appeal was preferred against the decree and that appeal was allowed by the appellant to be dismissed. We are by no means sitting in appeal over the decree in Suit No. 600 of 1961 by which the injunction was issued. In these facts this Court has no jurisdiction to interfere with the decree of injunction in this appeal I should, however, notice two cases on which Mr. Mukherjee relied in support of his contention. The first of these two cases was a decision of the Judicial Committee In Jai Berham v. Kedar Nath Marwari, AIR 1922 PC 269. Reliance was placed on the observation in this decision that it was the inherent and general jurisdiction at the Court to act rightly and fairly according to the circumstances, towards all parties involved. But in that case the question was whether in a case where a sale held in execution of a decree was set aside, the auction-purchaser should get back the moneys which he had paid, and which had been applied for the benefit of the judgment-debtor. The next case relied on by Mr. Mukherjee was Ellerman Lines Ltd. v. Read, (1928) 2 KB 144 at p. 145. In that case it was held that where a British subject obtained judgment In a foreign Court, an English Court could restrain enforcement of the judgment if it was shown to have been obtained by a breach of contract or by fraud. It was also held that in issuing the injunction the English Court proceeded upon the principle that the person seeking to enforce the judgment was in consequence debarred from attempting to do so. I do not see how the principles laid down in these two cases are of any assistance to the appellant in seeking an order for variation or vacation of the decree of Injunction. As I have said earlier, so far as this Court is concerned the decree of injunction has become final, the appeal against the same having been dismissed. Such a decree could not be interfered with in the application out of which this appeal arises and this Court sitting in appeal over the order made in that application has no greater power.

61. I now proceed to deal with certain other aspects of the order under appeal. In spite of the submission of counsel for the appellant that his client is no more interested in the performance of the decree and that he is not asking for an order for payment of the price by Mundhra, and delivery of the shares to him, we must take note of certain other orders made by the trial Court By those orders Mundhra was directed to psy Rs. 86,60,000/- to the Receiver within a fortnight from the date of the order, and the shares and the transfer deeds were to be made over by the Receiver to Mundhra's Solicitor after a fortnight Therefore it is clear that no time limit was fixed within which the shares and the transfer deeds were to be made over by the Receiver to Mundhra's Solicitor. If Mundhra paid the price of the shares to the Receiver, the Receiver was to forthwith make over the same to the appellant's solicitors. If this order is to be carried into effect it would mean that the purchaser would pay the price without receiving the shares and the transfer deeds, and if for one reason or another the Receiver cannot deliver the shares in terms of the order, the consequences will be disastrous so far as the purchaser is concerned, because he would have parted with a large sum of Rs. 86,60,000/- without getting what he had bargained for. In our view the trial Court ought not to have made an order directing payment of price before delivery of the shares. The trial Court appears to have completely overlooked the fact that the Receiver could not deliver the shares in terms of Its order, because a Receiver was appointed by the Supreme Court in respect of the shares which could not therefore in any event have been delivered by the Receiver to Mundhra unless the Receiver appointed by the Supreme Court was discharged or unless that Receiver obtained necessary directions from the Supreme Court to deliver the shares to Mundhra, in terms of the order of the trial Court.

62. The second matter In the order to which we should refer is the direction that Mundhra will take delivery of the shares from the Receiver subject to the decrees that have been passed against him and subject to the orders of attachment that have been levied by the creditors on the decree for specific per-formance or on the benefits thereof.

63. The order for attachment dated April 10, 1964 and November 30, 1964, has been set out at page 22 of Part I of the Paper Book. I set out below the relevant portion of the orders:--

'Whereas you the said Shri Haridas Mundhra ..... have failed to satisfy the decree ..... it is ordered under the provisions of Order 21, Rule 53 of the Code of Civil Procedure, that you the said Shri Haridas Mundhra be and you are hereby prohibited and restrained until the further orders of this Court from alienating, transferring or in anyway charging your right title and interest in the decree of this Court made in the said Suit No. 600 of 1961 and dated February 25, 1964, or from obtaining satisfaction thereof and you the said Mary Theresa Turner.....'

64. As I read the above order, apart from other things it is clear that Haridas Mundhra was prohibited and restrained from obtaining satisfaction of the decree. This restraint order is an imperative bar on Haridas Mundhra's obtaining satisfaction of the decree in his favour. The trial Court in directing him to pay the money and take delivery of the shares violated a mandate of this Court issued earlier, and this in our view the trial Court ought not to have done. The direction in the order of the trial Court that Mundhra will take the shares subject to the subsisting orders of attachment is no compliance with the restraint order, but is a clear violation of the same. If Mundhra is allowed to take the shares upon payment of the money, that would. be nothing other than obtaining satisfaction of the decree in his favour, which he was restrained from doing: and the provision in the order that he is to take the shares subject to the orders of attachment, in our view, is an altogether meaningless and useless appendage to the order. Mr. Mukherjee was right in his contention that the orders of attachment constituted a bar to Mundhra's obtaining satisfaction of the decree. But it cannot be overlooked that his client has prayed for variation or vacating the attachment orders and the stay order dated March 2, 1964. The trial Court further went on to direct that the stay order issued by Ray J. on March 2, 1964, stands vacated and liberty was given to the Certificate Officer or the Tax Recovery Officer to take such legal steps as may be thought best. This again the trial Court had no jurisdiction to do. The trial Court was by no means sitting in appeal over the order dated March 2, 1964, nor was it an application for a review of that order. The Court in our view had no jurisdic-tion to vacate the order in ancillary proceedings. The trial Court was also in error in making an order rescinding the decree in this suit. In our view, the learned Judge had no jurisdiction to make an order rescinding the decree.

65. There is one other matter in which the trial Court fell into a grave error. A Receiver was appointed to receive the purchase price from Mundhra and to deliver 51% shares of the company, together with the transfer deeds duly executed, to Mundhra's Solicitors. At the time this order was made the Supreme Court had appointed a Receiver of these shares, and such Receiver was holding the shares pursuant to the orders of the Supreme Court. In that state of things the trial Court, in our view, had no jurisdiction to direct the Receiver appointed by it to deliver the shares and the transfer deeds to Mundhra's Solicitors.

66. Mr. Deb frankly and fairly conceded that such an order could not be made as the Receiver appointed by the Supreme Court was holding the shares under orders of the Supreme Court- But as I said earlier, having regard to the submissions made by counsel for the appellant, that his client was no more interested in performance of the decree, it is not necessary for us to go into the various directions given by the trial Court regarding appointment of Receiver, payment of the purchase price to him and delivery of the shares with the transfer deeds by him.

67. I now proceed to refer to several other matters which were canvassed before us. The first of such matters is the order dated July 13, 1966, appointing Receiver of the shares in the suit filed by the company for enforcement of his lien (Suit No. 2005 of 1965). This order was referred to by counsel for the appellant in support of his contention that there was no substance in the objection raised by Mundhra that the shares could not be taken by him as the company was claiming a lien on these shares and for enforcement of that lien had instituted Suit No. 2005 of 1965 in this Court.

68. In the first place, it was argued by counsel for the appellant that the claim for lien advanced by the company was inspired and instigated by Mundhra, who was virtually in absolute control of the company as he was owner of 49% of the shares, and controlled the voting rights with regard to the remaining 51%. It was therefore submitted that since Mundhra was a party to the agreement which provided that the company would be entitled to pay the income-tax dues on behalf of the share-holders of the vendor under Section 23(A) of the Indian Income-tax Act a sum to the extent of Ra 46,00,000, he knew that the liability to the Income-tax Authorities was to be discharged by the company. It was further argued that he knew that the claim for lien was false and indeed this claim was inspired by him so that he might not be called upon to take delivery of the shares. It was next argued that since he was in full control of the company by virtue of his share-holding and the decree of injunction he could have and he should have compelled the company to withdraw its claim for lien, even assuming that the claim for lien was a legal claim which the company was entitled to enforce and which it was seeking to enforce independently of the wishes of Mundhra.

69. It was in connection with the contentions mentioned above that Mr. Mukherjee submitted that in spite of the claim for lien, the order dated July 13, 1966, by which a Receiver was appointed of the shares, provided that the Receiver would be at liberty to tender the shares to Mundhra free from lien claimed by the company, and if Mundhra paid the price and took delivery of the shares the company's lien, if any, would shift to the money to be paid to the Receiver. It appears that in the copy of the minutes furnished to the company the word 'or' was dropped from the following portion of the order:

'If Haridas Mundhra takes the shares on payment of the price directed to be paid under the specific performance decree or under the directions of the Court of appeal in that event the lien, if any, as claimed by the plaintiff company will shift on to trie money which the Receiver will receive .....'

Shortly after the order was made, the matter was mentioned on behalf of .the Company before A. N. Sen J., (who made the order) on the ground that the word 'or' which was not in the copy of the minutes furnished to the company should not be inserted in the order. But the learned Judge refused to make the variation and made it clear that the word 'or' should be there in the order. The relevance of this controversy regarding the word 'or' is that if the word 'or' is omitted the order would mean that Haridas Mundhra might take the shares under the specific performance decree only if so required by the Court of appeal. On the other hand if the word 'or' remains it would mean that Mundhra might take the shares either under the specific performance decree or under the directions of the Court of appeal. In other words, it was not incumbent upon Haridas Mundhra to obtain directions of the Court of appeal in order to take the shares under the specific performance decree. On the basis of the order that the word 'or' was there, as Sen J., said it ought to be and should remain, Mr. Mukherjee contended that if Mundhra was at all ready and willing to take the shares he could have taken the shares under this order free from lien altogether. But since he did not choose to do so, such conduct on his part was clear evidence of the fact that he was not readv and willing to take the shares and that the claim for lieu was set up by him as a mere device to avoid taking delivery of the shares under the decree.

70. The above contention on behalf of counsel for the appellant seems attractive but on a closure, scrutiny it appears to be without any merit. In the first place Mundhra was not a party in Suit No. 2005 of 1965 in which the Receiver was appointed and directions were given to the Receiver to deliver the shares on receipt of the money from Mundhra. In the second place the order dated July 13, 1966, was appealed against and the Division Bench set aside the order except to the extent that the Receiver was to continue to remain in possession of the shares. The appeal was disposed of more than a year afterwards and there was no stay of operation of the order. But Mr. Deb contended that the order itself being under appeal, his client could not be expected to pay a large sum of Rs. 86,60,000/- in obedience to the order which indeed was later on set aside. The third ground on which a good deal of emphasis was laid by Mr. Deb and which seems to us to be of great force, is that in the first part of the order dated July 13, 1966, the Receiver was given liberty to tender the shares to Haridas Mundhra if so required by the Court of appeal. It was argued by Mr. Deb that at no stage directions were obtained from the Court of appeal to enable the Receiver to tender the shares in terms of the order dated July 13, 1966. It seems to us that the Receiver could tender shares to Mundhra in terms of the order of July 13, 1966, only if he was so required by an order of the Court of appeal, but no such order was obtained and therefore the Receiver could not tender the shares to Haridas Mundhra merely in terms of the order of July 13, 1966, in the absence of any order or direction from the Court of appeal. Our view on this question is uncalled for having regard to the position taken up by the appellant, as noticed by me earlier, that he was no more interested in performance of the specific performance decree and that he would have either rescission of the contract or nothing at all; but since a good deal of emphasis was laid by counsel for both the parties on the order dated July 13, 1966, and the confusion created by the word 'or' in that order, I felt it necessary to deal with this question. This disposes of all the questions canvassed before us by counsel for the appellant and the respondent No. 1.

71. I shall now briefly note the contentions of counsel for the other respondents. Mr. Dipak Sen, counsel for the respondent No. 10, contended that the respondent No. 1 was indebted to the Income-tax Department to the extent of Rs. 1,44,74,591.23. He argued that the decree obtained by the respondent No. 1 had been attached by his client and in furtherance of that attachment, an order of stay of execution was made by this Court on March 2, 1964. He submitted that the trial Court was in error in vacating this stay order as the trial Court had no jurisdiction to vacate the same and such vacation would have the effect of depriving the Revenue Authority of valuable rights. I have already dealt with this question earlier in this judgment, and it is not necessary to add anything more to what I have said earlier.

72. Mr. Goho appearing for the respondent Nos. 7 and 8 submitted that he had no objection to the order made by the Court below.

73. I now proceed to deal with the cross-objection filed by the respondent No. 1. The first ground in this cross-objection is that the respondent No. 1 was always ready and willing to carry out his obligation under the decree in Suit No. 600 of 1961 and therefore the application out of which this appeal arises should have been dismissed. The other grounds of cross-objection have already been advanced by counsel for the respondent No. 1 in arguing the appeal and it is, therefore, not necessary for me to deal with the cross-objection any further.

74. In the result and for the reasons mentioned above the appeal and the cross-objection are allowed in part. The judgment, except in so far as it has been held that the application is not barred by res judicata or principles analogous thereto and that the application is not maintainable under Section 28 of the Specific Relief Act 1963, and the order in its entirety, are set aside and the application is dismissed. In the facts of this case the parties are to bear and pay their own costs in the Court below and also in this Court.

S.K. Mukherjea, J.

75. I agree.


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