Judgement

BOSE, J. : This appeal arises out of certain execution proceedings. The decree which the appellant, Jainarain Ram Lundia, seeks to execute is one that directs specific performance of a contract to sell certain shares in a private limited company known as the Ganga Devi Sugar Mills, together with a five annas share in a partnership firm called the Marwari Brothers, on payment of a sum of Rs. 2,45,000.

2. The fact are as follows. The partnership firm, known as the Marwari Brothers, was formed on 29-2-1936. The partners consisted of two groups called the Bettia Group and the Padrauna Group. The Padrauna Group consisted of (1) Kedarnath Khetan and (2) a firm called Surajmal.

These two were the plaintiffs in the suit. Kedarnath was one of the partners of the Surajmal firm. The Bettia Group consisted of (1) Gobardhan Das (2) Jainarain Ram Lundia (3) Badri Prasad and (4) Bisheshwar Nath. On Bisheshwar Nath s death his son Madan Lal Jhunjhunwalls stepped into his shoes. These persons were the defendants.

3. The Marwari Brothers Firm was formed for the purpose of promoting a company for starting a sugar mill in Champaran and for securing the managing agency of the company for itself for a period of ninety years. This was done. The capital of the company consisted of Rs. 8,00,000 divided into 800 shares of Rs. 1000 each.

The shares were distributed as follows. In the Bettia Group Gobardhan Das and his brother Badri Prasad had 100 shares. Jainarain had 150 and Madan Lal had 100. The Bettia Group thus had 350 shares between them. The other group (Padrauna) held the remaining 450 shares.

4. About five years later the two sets of partners fell out and, as a result, the Bettia Group agreed, on 1-1-1941, to sell a certain number of their shares in the Ganga Devi Sugar Mills Limited to the Padrauna Group along with a certain share in the Marwari Brothers firm.

The exact number of shares, agreed to be sold and the extent of the share in the firm was a matter of dispute but that does not concern us at this stage because we are only concerned with the final result embodied in the decree now under execution.

5. The Padrauna Group sued for specific performance and the dispute was carried as far as the Federal Court. That Court affirmed the decree of the Calcutta High Court on 6-5-1949. The substance of the decree was this :

1. "It is declared that upon payment and or tender to the defendants-appellants Jainarain Ram Lundia and Madan Lal Jhunjhunwala, of the sum Rs. 2,45,000 ..... with interest thereon ....... By the plaintiffs, the plaintiffs are entitled to 250 shares belonging to the said defendants in the Ganga Devi Sugar Mills Limited and five annas share belonging to them in the Marwari Brothers ...... and to all dividends and profits in respect thereof with effect from 1-2-1941......"

2. "And it is further ordered and decreed that against payment or tender by the plaintiffs to the said defendants ....... Of the said sum of Rs. 2,45,000 with interest as aforesaid the said defendants - appellants and all proper parties do execute in favour of the plaintiffs proper deed or deeds of transfer or assignment of the said 250 shares in the Ganga Devi Sugar Mills Limited and the said five annas share in the Marwari Brothers......"

6. This was in slight variation of the first Court s decree. The exact variation does not matter. All that it is necessary to note is that the plaintiffs (that is, the Padrauna Group) tendered the money some time after the first Court s decree and before the Calcutta High Court s decree.

The tender was not accepted as the defendants (the Bettia Group) had appealed. It is admitted that there was no second tender after the High Court s decree.

7. After the Federal Court had settled the matter one of the defendants, Jainarain Ram Lundia, applied to the Calcutta High Court for execution. The decree was transferred to the Subordinate Judge, Motihari, and the execution proceedings started there on 25-1-1951. One of the plaintiffs, Ke