D.B. Lal, J.
1. Ashok Chandra, Smt. Savitri Devi and Jagdish Chandra filed a suit in this Court for dissolution of partnership and rendition of accounts. The defendants were Sarvshri O. P. Bansal, Suresh Bansal and Smt. Hira Sundri. On June 20, 1973 a compromise was arrived at between the parties. The decree was passed in terms of the compromise and the deed itself was made a part of the decree. The compromise deed provided inter alia the following conditions :--
'1 (b) Shri O. P. Bansal and Shri Suresh Bansal further gave an undertaking to the Hon'ble High Court, not to sale, mortgage or encumber in any manner their property mentioned below until the defendants have paid in full the said sum of Rs. 1,50,000/- (Rupees one lakh and fifty thousand) only as mentioned above. The plaintiffs shall have the first charge at their option on the undermentioned property.'
One single storeyed Building in Bansal Estate, bearing Municipal No. III/76 with two bighas of vacant land going towards Jawahar Park, Mall Road, Solan (Himachal Pradesh) let out to M/s. Himachal Scientific and Optical Works at Rs. 7,500/- per annum and bounded as below :--
Double storeyed building be-longing to O. P. Bansal and in possession of Shri O. P. Bansal.
Double storeyed building be-longing to Sbri O. P. Bansal and in possession of Shri L. P, Jain as tenant.
Other property consisting of a Shed belonging to Shri O. P. Bansal.
Open ground of BansalEstate belonging to Shri O. P. Bansal.
(d) That the defendants shall be liable to pay two-third amount of sales-tax and the plaintiffs 1 and 2 shall pay one-third sales tax payable by the partnership firm upto 15th June, 1973. All sales-tax liability for the future business after 15th of June, 1973, shall be that of the defendants.
(e) That if the Income-tax Department accepts and assesses 'CHANDRA TRADING CO.' Rajagarh Road, S(sic)an, as a 'REGISTERED PARTNERSHIP FIRM' within the provisions of the Indian Income-tax Act, the entire Income-tax levied on the firm shall be exclusively paid and borne by the defendants themselves and in the event the same is assessed as an UNREGISTERED PARTNERSHIP FIRM, the plaintiffs 1 and 2 shall pay Income-tax in proportion to their respective shares in the partnership for the business carried on upto 15th June, 1973. However, the respective parties shall pay their own Income-tax themselves.
(h) That in case the defendants are made to pay any amount payable by the plaintiffs 1 and 2 which amount is payable by the plaintiffs under this compromise the said amount shall be deducted by the defendants from the last amount of instalment payable by the defendants to the plaintiffs.'
The suit was thus decreed for Rupees 1,50,000/- on terms and conditions mentioned in the compromise.
2. The payment was required to be made in five instalments and the last instalment of Rs. 33,000/- was to be paid 'by 14th January, 1974.' The defendant judgment-debtors did not pay this last instalment and this gave rise to the present execution application.
3. The plaintiff decree-holders sought for the execution by arrest of the judgment-debtors and by attachment of the movable properties belonging to them. Upon their application, this Court issued notice to show cause to the judgment-debtors, why they should not be arrested and also issued process for attachment of their movable properties of which a list was supplied by the decree-holders. The attachment of movable properties has since taken effect. The judgment-debtors come up with these two objections. One of their objections is against the very execution, while the other objection relates to the notice issued to them to show cause for their arrest in execution of the decree.
4. In their two objections, the judgment-debtors contend, that they cannot be arrested and detained in prison because conditions laid down in Section 51 of the Code of Civil Procedure are not satisfied. As such the executing Court has no jurisdiction io enforce execution by their arrest and detention in prison. It is further contended by them, that the decree-holders have not paid their one-third share of sales tax and income-tax and under Clause (h) of the compromise the amount of tax was liable to be deducted from the last instalment. In fact the judgment-debtors have withheld the payment of that instalment because the amount of tax realisable from the decree-holders is more than the amount specified for the last instalment. At any rate, the judgment-debtors cannot be stated to have refused or neglected to make the payment of that instalment. The assessment order regarding the tax, especially the sales-tax, is awaited because of the default committed by the decree-holders. The judgment-debtors contend that forms 'C' were not collected by the decree-holders from Delhi constituents and the said forms were not forwarded to the judgment-debtors. In this manner the assessment order could not be made. It is then contended, that in the compromise decree a first charge was created upon a certain immovable property specified in Clause 1 (b). As such the decree itself was not for the payment of money and the execution could not be sought for by arrest and detention. That apart, the decree-holders had to satisfy their decree first from the property so specified in the compromise. According to the judgment-debtors, the attachment of movable properties could not take effect because of this reason. The judgment-debtors also contend that the decree-holders had become their agents for the payment of sales-tax and income-tax and the last instalment could even be detained by the judgment-debtors as they had a lien over it until the liability was discharged. Under specified provisions of the Sales Tax Act and the Income-tax Act, the judgment-debtors were liable to pay the entire taxes even for the period the liability was shared by the decree-holders under the compromise deed. Had not the judgment-debtors detained the payment of the last instalment, they were left without any remedy. Then perhaps they would have had Io file a regular suit against the decree-holders which they wanted to avoid. The assessment order regarding sales-tax and income-tax was not likely to be made upto January 14, 1974 which was the date fixed for the payment of the last instalment. As such the intention of the parties was not to stick to that date and the payment decidedly depended upon the assessment order and proper deduction made in favour of the judgment-debtors.
5. The decree-holders have replied these objections. Their contentions are that the Court had every jurisdiction to issue the notice to show cause against arrest and detention. Regarding withholding of the payment of last instalment, they have stated, that under Clause (h) until the judgment-debtors made payment on behalf of the decree-holders of the amount of taxes, they had no right to deduct the same from the last instalment. According to decree-holders they were willing to deposit a tentative figure of such taxes in Court subject to the judgment-debtors depositing double that amount being their liability under the compromise deed. The decree-holders proposed that the judgment-debtors may thus deposit Rs. 1,00,000/- and only thereafter they can be absolved from execution. This amount would include Rupees 33,000/- being the amount of last instalment and also the amount of tax payable by them. There was no question of implied agency of the decree-holders and as such according to them the judgment-debtors had no lien to detain the payment of the instalment. It was contended that the date for payment of the last instalment was specific which could not be altered. If the assessment order was not made upto that date and if no payment was made on their behalf by the judgment-debtors, the instalment was to be paid unconditionally. Therefore, according to decree-holders, the judgment-debtors have even lost their right to realize the amount of tax from the decree-holders. As to the first charge made against the specified property, it was contended that the decree was none the less a money decree and could be executed by arrest and detention in prison. It was left to the option of the decree-holders to execute the decree in the first instance against the specified immovable property which they never chose to exercise. The judgment-debtors had the means to pay the amount of the decree and, therefore, the condition laid down in Section 51 was satisfied with the result that they could be arrested and detained in prison. It was, however, admitted that 17 'C' forms were collected by the decree-holders on behalf of the judgment-debtors. But this was done as an act of courtesy, because the decree-holders were not liable to wait for the assessment. It was the duty of the judgment-debtors to have obtained the assessment order and if ihey permitted the date of instalment to expire and never made payment of taxes on behalf of the decree-holders, the fault lay with them and neither the instalment could be withheld nor any deduction could be made out of it.
6. A perusal of Section 51 of the Code clearly indicates that before the decree for payment of money could be executed by arrest and detention in prison certain specified conditions were required to be satisfied. These conditions were, that the judgment-debtors, with the object or effect of obstructing or delaying the execution of the decree (a) were likely to abscond or leave the local limits of the jurisdiction of the Court, or (b) had after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of their property, or committed any other act of bad faith in relation to their property, or (c) that they had means to pay the amount of the decree and refused or neglected to pay the same, or (d) that the decree was for a sum for which they were bound in a fiduciary capacity to account. The reliance of the decree-holders is on condition (c) and as evident they have to satisfy that the judgment-debtors had refused or neglected to pay the instalment. This would necessarily drag the parties to the controversy regarding payment of luxes. There can be no doubt that plaintiffs 1 and 2 who are the present decree-holders, took upon themselves the liability to pay one-third of the sales-tax and the income-tax. Under Clause (h) of the compromise in case the judgment-debtors paid any tax on their behalf, they were entitled to deduct the amount from the last instalment. It is further clear from the conduct of the parties that 'C' forms were not forthcoming so that assessment order regarding sales-tax could be made within time. Although the decree-holders according to them collected such forms as an act of courtesy on their part, yet the fact of the matter is, that they themselves realized the 'C' forms and helped the judgment-debtors in collecting them. According to averments made in their reply, the decree-holders collected 17 of such forms. Annexures 6 and 6-A of their objection, indicates that letters were written to the decree-holders by the judgment-debtors for handing over to them the declaration forms 'C' in respect of supplies made to the constituents. A request was made to 'post forthwith' all these declaration forms which were collected by the decree-holders at Delhi on behalf of the judgment-debtors. The matter was asked to be treated as 'most urgent' which needed immediate action. Annexure 6-A is a letter of Milap Iron Syndicate and the indication is that the decree-holders were collecting declaration forms 'C' from the constituents including that firm. It was written to the judgment-debtors that they could take the declaration forms 'C' from the decree-holders. It is undisputed that the judgment-debtors are the successors in business and under the provisions of the Sales-tax Act and the Income-tax Act, it is they who are liable to pay the entire tax even for the period the liability was imposed upon the decree-holders. All this necessarily leads to an inference that the judgment-debtors wanted to safeguard their rights and Clause (h) of the compromise deed which existed to their benefit was adhered to by them. It is explicitly clear that once the decree-holders escaped payment of tax and Clause (h) was not enforced against them, the judgment-debtors would have been left without any remedy against them except filing a regular suit. Decidedly they wanted to avoid such a situation. In these circumstances it cannot be held that they 'refused' or 'neglected' to make the payment of the last instalment. For these reasons Section 51 became ineffective and the judgment-debtors cannot be arrested in execution of the decree. For this, reference need also be made to N. Ramachandra Iyer v. Thomas Mathai, (AIR 1966 Ker 65). Unless the pre-requisite conditions laid down in Section 51 of the Code were satisfied the detention of the judgment-debtors could not be ordered under the proviso appended to that section. This would leave the Court in no doubt that the execution could not be proceeded against the judgment-debtors by their arrest or detention in prison. The notice to show cause issued against them is thus to be discharged.
7. As to the reciprocal obligations contained in the compromise decree, the contention of the decree-holders is that the condition of payment of tax was enforceable only prior to the date fixed for payment of last instalment. Once that date was permitted to cross, the condition ceased to exist and instalment was realizable. To this the reply of the judgment-debtors is that the reciprocal condition is very much inherent and embedded in the body of the compromise deed. In fact the Court has to read the whole of the composite document in order to infer as to how that condition was to be imposed and in what manner the instalment was to be realized. The liability to pay tax was decidedly theirs but the fault was not with the judgment-debtors if no such tax was paid by them on behalf of the decree-holders. I have already pointed out the circumstances under which the declaration 'C' forms were not supplied to the judgment-debtors within time so that the assessment order could be made. The decree-holders cannot be permitted to make defunct the Clause (h) in these circumstances. The intention was to deduct the tax from the last instalment and in my opinion it would not make any difference if the judgment-debtors have not made the payment for no fault of theirs and to a great extent because of the default committed by the decree-holders. When the declaration 'C' forms were collected by the decree-holders, it was their duty to produce them within time to facilitate assessment order. It would in fact be defeating the terms of the decree if the judgment-debtors are not asked to realize the tax from the decree-holders but are left to the remedy of filing a separate suit against them. In Jai Narain Ram v. Kedar Nath, (AIR 1956 SC 359), their Lordships were considering a case where a decree imposing reciprocal and inter-linked obligations was passed. The question was, as to whether the judgment-debtors were in a position to perform their part of the decree. The executing Court has to consider whether the judgment-debtor was in a position to perform his part of the decree. It has to see that the judgment-debtor gives the decree-holder the very thing that the decree directs and not something else and so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it. It would be a matter distinctly relating to the execution, discharge and satisfaction of the decree. When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree 'a thing that an eexcuting Court cannot do.' Applying this principle to the present case, I must hold that the judgment debtor was rendered unable to perform his part of the duty because of the conduct of the decree-holder. The intention behind the decree was the payment of tax as much by the decree-holder as it could be by the judgment-debtor. Until such tax was paid the last instalment could not be returned to the decree-holder. On this ground, the execution itself in the present form would be rendered infructuous and nugatory.
8. As to the first charge it was no doubt created under the decree itself and the specified immovable property was required to be attached and sold in the first instance. The option was, however, given to the decree-holder. It is significant that the decree-holders have not given any reason why they did not exercise this option. This would be an additional ground why the attachment should not have been permitted in the first instance against the movable property. The result would be that the attachment of movable properties would be withdrawn and the objection would be allowed to that extent. In Presidency Industrial Bank Ltd. v. Hindustan Leather Industries Ltd., (AIR 1969 Bom 84) it was held that execution is not maintainable in a decree in which the condition was that the decree-holder shall first exhaust his remedies against properties charged under the decree. An execution cannot be made against properties other than the properties charged under the decree. Similarly in Dhirendra Nath v. Santa Shila Devi, (AIR 1968 Cal 336) it was held that such a condition attached to the decree does not necessarily refer to a charge created under Section 100 of the Transfer of Property Act and as such a regular suit is not to be filed to enforce such charge. It would be a case where a decree itself created a charge and the words used in the decree are not inconsistent with the intention of the Court to have the judgment creditor's dues satisfied by sale of the charged properties in execution proceedings; a fresh suit to achieve the same purpose is not maintainable. Applying these authorities to the present case, the execution should have been sought against the specified property in which first charge was created under the decree.
9. While the case was argued in this Court it was given out by the decree-holders that Rs. 33,000/- for which execution is sought for, is after all due from the judgment-debtors and some time may be granted to them to clear off the dues regarding taxes. The judgment-debtors also showed willingness to deposit the amount of Rs. 33,462/-in Court for which a fixed deposit receipt would be obtained in the name of the Court. According to judgment-debtors this amount would not be paid to the decree-holders initially for a period of three months and within this period they would clear all the taxes. The obvious condition is that the amount of tax paid by them on behalf of the decree-holders would be deducted from this amount lying in deposit. The balance, if any, would only be payable to the decree-holders. In case the taxes are not paid within three months, the judgment-debtors may get further extension from the Court on showing proper grounds why they could not make the payment of taxes within the initial period of three months. In case an extension is granted the same conditions would apply regarding payment to be made to the decree-holders of the amount lying in deposit. If the initial period of three months is not extended the decree-holders would be at liberty to withdraw the entire amount from the Court. The fixed deposit receipt would of course be obtained to safeguard interest which would accrue on the amount lying in deposit. The deposit itself has to be made in this Court within a period of fifteen days from the date of this order.
10. The two objections are, therefore, allowed and the notice to show cause against execution by arrest and detention is discharged. Similarly the attachment effected of the movable properties is also withdrawn and set aside. The execution case shall, however, remain pending subject to directions given above for the satisfaction of the decree. The parties shall bear their own costs in these objections.