Jagat Narayan, J. - (1.) THIS is a revision application by the defendants against an order of the Civil Judge, Chittorgarh holding that the suit is not undervalued and he has jurisdiction to try it.
(2.) A Preliminary objection was taken that a revision application is not maintainable as the point can be agitated in an appeal against the decree. For reasons given in Kanhaiyalal Vs. Himmat Bahadur (l) this preliminary objection has no force. The appellate court cannot set aside the decree of the trial court without coming to a finding that the disposal of the suit on merits has been prejudicially affected on account of its having been tried by a court not empowered to try it. The facts which are relevant for disposing of this revision application are these. The plaintiff mortgaged some of his immovable properties with the defendant usufructuarily for a sum of Rs, 17,000/ -. The plaintiff also borrowed some money from the defendants and executed a Khata. On 19. 12. 61 the plaintiff entered into a contract of sale of these properties with the defendants. Under the terms of this contract a sum of Rs. 6,900/- was to be paid by the defendants to the plaintiff as balance of the consideration remaining unpaid. The total sale consideration was Rs. 29,862/8/- The mortgage debt and the debt due on the Khata were adjusted towards the payment of sale price. The sum of Rs. 6,900/- was to be paid at the earliest on 26. 10. 61 and at the latest on 14. 6. 62. On receipt of the amount the plaintiff was to execute a sale-deed in favour of the defendants and to get it registered. The plaintiff-was to get interest on Rs. 6,900/- from 26. 10. 61 to the date of payment at 6 per cent per annum simple provided payment was made by 14. 6. 62. In case the payment was not so made the defendants were liable to pay a sum of Rs. 1,000/- as damages and further to pay interest at 9 per cent on Rs. 6900/- from 14. 6. 62 till the date of payment. The defendants did not pay the sum of Rs. 6900/-either upto 14. 6. 62 or even after that date and the plaintiff instituted the present suit for the recovery of a sum of Rs. 8,378/- under the agreement dated 19. 12. 61 as follows - Rs. 6,900/- as balance of sale consideration. Rs. 1,000/- as damages under the agreement. Rs. 478/- as interest under the agreement. The suit was resisted by the defendants inter alia on the ground that it was a suit for the specific performance of a contract of sale and under sec. 40 (a) of the Rajasthan Court Fees and Suits Valuation Act, 1961 court-fee is payable on the amount of the sale consideration and under sec. 48 (1) the suit has to be valued for purposes of jurisdiction at the same amount. As the pecuniary jurisdiction of the learned Civil Judge extends only upto Rs. 10,000/- and the sale consideration is Rs. 29,862. 8. 0 he is not competent to try it. The learned Civil Judge framed a preliminary issue on the point and held that the suit as framed is a suit for the recovery of money due under the agreement dated 12. 12. 61 and is not a suit for specific performance of a contract of sale. He was accordingly of the opinion that the suit was rightly valued at Rs. 8,378/- and he was competent to try it. I have heard the learned counsel for the parties and I am satisfied that the present suit is substantially one for the specific performance of the contract of sale dated 19. 12. 61 and ad valorem court-fee is payable on a sum of Rs. 29,862/8/- which is the sale consideration under the contract. In Fry's Specific Performance, Sixth Edition, the law on the point is stated as follows in Art. 72 - "it may appear at first that, inasmuch as money in exchange for the estate is what the vendor of land is entitled to he, has a complete remedy in action lor damages, and therefore cannot sustain an action for the specific performance of the contract. But on further consideration it will be apparent that damages will not place the vendor in the same situation as if the contract had been performed; for then he would have got rid of the land and of all the burdens and liabilities attaching to it, and would have the purchase-money in his pocket; whereas, after an action for damages, he still has the land and, in addition, damages, representing, in the opinion of a jury, the difference between the stipulated price and the price which it would probably fetch, if re-sold, together with incidental expenses and any special damage which he may have suffered. The doctrine of equity with respect to the conversion of the land into money, and of the money into land upon the execution of the contract, and the lien which the vendor has on the estate for the purchase-money, and his right to enforce this by the aid of the Court, are additional reasons for extending the remedy to both parties. Accordingly, it is well established that the remedy is mutual, and that the vendor may bring his action in all cases where the purchaser could sue for specific performance of the contract, and this independently of any question on the statute of frauds. " In Sarkar's Specific Relief Act, Ninth Edition, under the heading "reliefs available in a suit for specific performance of an agreement to sell when the vendor is the plaintiff, it is stated at page 69 - "when the purchaser refuses to pay the money or to obtain the conveyance, the vendor may sue for directing the purchaser to pay the money, and to obtain the conveyance on furnishing the stamps etc. or the costs thereof (where he is liable to supply them ). In the absence of an express term, the purchaser has to pay for the stamps sec. 29 (c), Indian Stamp Act. A suit by the vendor for the recovery of the unpaid purchase money in a suit for specific performance. " Under the heading "form of decree" it is stated - "the remedy of specific performance being mutual, - in every suit, whether brought by the purchaser or by the vendor, the court must direct both parties to perform their respective parts under the agreement : (ii) In a purchaser's suit, - the purchaser is directed to pay the money and thereupon the vendor to execute the conveyance and deliver the title deeds. The decree in each suit enures for the benefit of both parties and may be executed by either. '' The above observations are supported by the following decisions - Bhashyakarlu Vs. Andalammal (2), Subramanian Chettiar Vs. Arunachalam (3), Smt. Khatun Bibi Vs. Lilabati Dassi (4), Haramba Chandra Vs. Jyotish Chandra (5), Bai Karimabibi Vs. Abderehman (6 ). In the first two of the above cases the vendor bad brought a suit for recovery of purchase money. 7. An action for specific performance is appropriate only to the enforcement of obligations of an executory as distinguished from an executed contract. For this purpose an executory contract is an agreement which is not intended between the parties to be the final instrument regulating their mutual relations under their contract ; an executed contract, on the contrary, is a contract in which all has been already done to settle finally the relative position of the parties. Mutuality is essential in a suit for specific performance of a contract and the court will not pass a decree for specific performance of a contract unless the plaintiff also could be compelled to specifically perform his part of the obligation. The court will not decree the suit for the recovery of a sum of Rs. 8,378/- on the basis of the agreement dated 19. 12. 61 in favour of the plaintiff without at the same time passing a decree in favour of the defendants directing the plaintiff to execute a conveyance in their favour on their furnishing the stamps, or the costs thereof. The suit of the plaintiff cannot therefore be regarded merely as a suit for recovery of money on the basis of agreement dated 19. 12. 61. It is suit for the specific performance of that agreement. A specimen form of the plaint in such a suit is contained in the C. P. C.- Form No. 47 Appendix A. The heading of this form is "specific Performance". The agreement in question is a contract for sale of immovable property. The present suit of the plaintiff is therefore a suit for specific performance of a contract of sale. Under sec. 40 (a) of the Rajasthan Court Fees and Suits Valuation Act, 1961 court fee is payable on the sale consideration namely Rs. 29,862. 8. 0. Some decisions were referred to on behalf of the respondent. None of them relates to a suit brought by the vendor to recover purchase money or part thereof on the basis of agreement to sell immovable property. These decisions can be classified into three classes. One class relates to cases in which the question arose as to whether in a suit for specific performance of a contract of sale of immovable property by the vendee in which possession was claimed the relief of possession was to be regarded as the main relief or as one merely ancillary to the relief of specific performance. The decision in Gopaldas vs. Parmanand (7) belongs to this class. It was held in this case that the main relief is that of possession. This decision does not lay down the law correctly and was dissented from in subsequent decisions of the same Court ; see Shiv Dial vs. Shiv Ram Das (8 ). The Allahabad, Bombay and Madras High Courts also have taken the view that suits for possession based on a contract of sale are to be regarded as suits for specific performance of the contract and the court fee is payable on the sale consideration. The reason is that in every contract of sale the seller as much agrees to put the purchaser in possession as he agrees to execute the conveyance in his favour and in a suit for specific performance the purchaser seeks to enforce the terms of his contract. The mere fact that possession is also claimed does not render the suit any the less a suit for specific performance. See Ramanujam vs. Sivalingam (9 ). To the next class belong the decisions in Maung Ni vs. Maung Aung Ba (10) and Thirumurthy Chetty vs. Ponnam Chetty (11 ). These suits were brought for the recovery of money on the basis of awards prior to the enactment of the Arbitration Act, 1940. Under sec. 30 of the Specific Relief Act the provisions of Chapter II of that Act as to contracts apply mutatis mutandis to all awards. There was some conflict of opinion as to whether a suit for enforcing an award was a suit for specific performance of a contract. It was held by the majority of the High Courts that sec. 30 of the Specific Relief Act does not make a suit to enforce an award a suit for specific performance of a contract. It only says that an award can be enforced in the same manner as a contract. This class of cases are consequently of no help. To the third class belong the decisions of Dhuman vs. Ramji Mal (l2 ). This was a suit by a vendor for the recovery of the balance of purchase money due from the vendee, It is clearly mentioned in the judgment that the sale by the plaintiff was complete and he was only suing for the money that was payable to him under the contract. That was thus a suit based on an executed contract and not a suit based on executory contract. The suit could not be regarded as one for specific performance of a contract. For it is only an executory contract which is to be specifically enforced and not an executed one. This decision is also therefore of no help. I accordingly allow the revision application, set aside the order of the learned Civil Judge) holding that he had jurisdiction to try the suit and direct that the plaint be returned for presentation to proper court. Ad valorem court fee on the sum of Rs. 29, 862. 8. 0 would be payable on the plaint. The decree to be passed in the suit will be in terms which have been indicated above. . ;