cases in which by some accident there is physical impossibility of delivery, not cases in which there is contempt of court in refusing or omitting to deliver.

Courts of equity have from very early times compelled the return of specific chattels, courts of law having been unable until lately to do more than compel payment of the value of such chattels as assessed by the jury. Formerly equity interposed for this purpose only where the chattels were of peculiar value to their owners, as for example heir-looms, Pusey v. Pusey, 1 Vern, 273; Duke of Somerset v. Cookson, 3 P. Wms., 389; but lately the doctrine has obtained that interference is warranted generally where there is a fiduciary relation between the parties. Wood v. Rowcliffe, 3 Hare, 304. Sec. 78 of the Common Law Procedure Act, 1854, enables a court of law or a judge to order, upon the application of the plaintiff, that the chattel detained' shall be returned,' without giving the defendant the option of retaining' such chattel upon paying the value assessed; and provides that :-"If the said chattel cannot be found, and unless the court or a judge should otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, till the defendant render such chattel, or, at the option of the plaintiff, that he cause to be made of the defendants goods the assessed value of such chattel."

For the principles observed by courts of equity in enforcing the specific performance of contracts relating to personal chattels, the notes to Cuddee v. Rutter in Tudors Leading Cases in Equity, vol. 1, should be consulted. The main principle appears to be, that equity will enforce the specific performance of such contracts only where from the nature of the subject of the contract damages are not a reasonably adequate compensation.

The new Indian Law on this subject will be found in the Specific Relief Act, 1877.

209. When the suit is for a sum of money due to the plaintiff, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such

In suits for money, decree may order certain interest to be paid on principal sum adjudged.

rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

From the Proceedings of the Council of the Governor-General of the 21st September 1876 it appears that the Hon'ble Mr. Hobhouse said:" Another matter to which we called special attention in our Report last year is one which is considered to be of great importance by many Judicial and Executive authorities, and that is the practice of treating decrees as permanent investments of money. I mentioned to the Council before the remedies by which we proposed to abate that practice, which is considered to have a very injurious effect. I have only now to say that our proposals have met with almost universal approval, and that we have in the present draft somewhat strengthened the provisions which were made before. What we have further done in that respect is as follows.

"In Sec. 209 we have adopted the plan already adopted by the High Court of Calcutta and the Chief Court of the Panjab, namely, to provide that decrees shall not carry more than 6 per cent. interest. That plan has been in operation in those two parts of the country for some two or three years, and is believed to work satisfactorily.

"In Sec. 232 we have provided that before a decree which has been transferred from hand to hand can be executed, notices shall be given to the transferor and the judgment-debtor, that the Court may hear if they have anything to say against that decree being carried into execution; and in Sec. 235 it is provided that applications for the execution of decrees shall be verified, and that such applications shall give the history of all previous applications for the same purpose."

The six per centum limit was, however, given up, and in the Final Report of the Select Committee it is stated: "In suits for money we think that the interest allowable on the sum adjudged, from date of decree to date of payment, should be at such rate as the Court deems reasonable."

May, in the decree, order.-But where a decree does not provide for the payment of interest, it is not competent to the court ministerially executing the decree to add to it by giving interest.

Kuppa Ayyar v. Venkataramana Ayyar, 3 H. C. R., 421. And see the remarks of the judges in Subba Venkataramaiyan v. Subraiya Ayyan, 4 H. C. R., 257.

210. In all decrees for the payment of money, Payment by instal- the Court may for any sufficient reason order that the amount shall be paid by instalments, with or without

ments.

interest.

And after the passing of any such decree the Court may, on the application of the judgment-debtor, and with the consent When Court may of the decree-holder, order that the amount decreed order payment by in- be paid by instalments on such terms as to the paystalments. ment of interest, the attachment of the property of the defendant, or the taking of security from him, or otherwise, as it thinks fit:

Save as provided in this section and Sec. 206, no decree shall be altered at the request of parties.

By instalments. This expression should be construed naturally, I imagine, and not be held to extend to payment of the whole debt at a future date, though no doubt an order to pay one anna down and Rs. 10,000 at the end of six months would be an order to pay by instalments.'

'Instalment,' a portion of a debt. When a debt is divided into two or more parts, payable at different times, each part is called an instalment, and the debt is said to be payable by instalments. It is a frequent condition in bonds, warrants of attorney, &c. Wharton.

Decrees adjudging payment of a fixed sum per month by way of maintenance have been held to be capable of execution in the same way as decrees for payment of money by instalments. Sinthayee v. Thanakapudeyan, 4 H. C. R., 183.

Court

211. When the suit is for land or other property yielding rent or other In suits for land, profit, the Court may provide in the decree for the payment of rent or mesne profits in respect of such decree paymay ment of mesne profits Property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made, or until the expiration of three years from the date of the decree (whichever event first occurs), with interest thereupon at such rate as the Court thinks fit.

with interest.

Explanation. Mesne profits' of property mean those profits which the person in wrongful possession of such property actually received, or might with ordinary diligence have received, therefrom.

For land or other property.-Ejusdem generis? The old words of the section are retained, the adoption of the new terminology in Sec. 16 notwithstanding.

Or other profit.-Observe the addition of these words.

Rent or mesne profits.-See Sec. 44.

A decree for possession and mesne profits must, with reference to (old) Sec. 196 Civil Procedure Code, be held to mean mesne profits down to the date of delivery of possession. Dhurm Narain Singh v. Bundhoo Ram, 12 W. R., 75.

212. When the suit is for immoveable property and for mesne profits which have accrued on the property during a period prior to the institution of the suit, and the amount of such profits is disputed, the Court may either determine the amount by the decree itself, or may pass a decree for the property and direct an inquiry into the amount of mesne profits, and dispose of the same on further orders.

Court may determine amount of mesne profits prior to passing decree, or may reserve inquiry.

Which have accrued.-These words seem to mark the difference between the two classes of cases provided for by Secs. 212 and 211, respectively.

213. When the suit is for an account of any property and for its due administration under the decree of the Court, the

Administration-suit. Court, before making the decree, shall order such accounts and inquiries to be taken and made, and give such other directions as it thinks fit.

In the administration by the Court of the property of any person who dies after this Code comes into force, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities proveable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being with respect to the estates of persons adjudged insolvent ;

And all persons who in any such case would be entitled to be paid out of such property may come in under the decree for its administration, and make such claims against the same as they may respectively be entitled to by virtue of this Code.

Applications under Sec. 265 of the Indian Contract Act, 1872, shall be deemed to be suits within the meaning of this section.

This new section is taken almost word for word from Sec. 10 of the Supreme Court of Judicature Act, 1875, under which in Lely and Foulkes' book will be found these notes :

"The three points on which the law for the administration of the estate of a deceased insolvent is assimilated to the law of bankruptcy are: (1) the rights of secured and unsecured creditors; (2) the proveability of debts and liabilities; and (3) the valuation of annuities and contingent liabilities. The bankruptcy rule on the first point will be found in Sec. 40, and that on the other two points in

Sec. 31 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71). The most important effect of the new rule is that the secured creditor is not, as heretofore, entitled to the full benefit of his security, and also, if his security be insufficient, to receive a dividend on his whole debt, or so much of the amount of such dividend as, together with the value of his security, makes up his whole debt (Mason v. Bogg, 2 My. & Cr., 443), but, if his security be insufficient, he will be entitled to a dividend in respect of the deficiency only."

It is stated in the Report of the 21st September, 1876 :-" In administering the assets of persons dying after the Code comes into force, we have provided (Sec. 213) that the Courts shall be guided by the same rules as to rights of creditors, proveable debts and valuation of annuities, and future and contingent liabilities, as are in force as to the estates of persons adjudged insolvent, and that all persons who would be entitled to dividends out of the estate of any such deceased person, may come in under the decree and make their claims against the estate. We have declared in the same section that applications under Sec. 265 of the Indian Contract Act, to wind up the business of a partnership, shall be deemed to be administration suits."

Upon this point compare the provisions of the new insolvent law in Sec. 356 below.

See the notes to Sec. 30 about administration suits by creditors.

For an account.-See the forms of plaints in the Fourth Schedule, Nos. 105-7, and of concise statements, No. 114, for a creditor or legatee praying to have the property of a deceased person administered.

Shall order. See the form of the preliminary order in the Fourth Schedule, No. 130.

214. When the suit is to enforce a right of pre-emption in respect of a Suit to enforce right particular sale of property, and the Court finds for the of pre-emption. plaintiff, if the amount of purchase-money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid, and shall declare that on payment of such purchase-money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not so paid, the suit shall stand dismissed with costs.