Judgement Appeal from a judgment and decree of the High Court (March 1, 1909) reversing a judgment and decree of Chitty J. (April 6, 1908). The suit was for specific performance of a contract for the sale of a decree and was instituted under the following circumstances. Bangsa Gopal Nandi sued to enforce a mortgage upon certain properties in the Darbhanga and Monghyr districts and died, having by his will appointed two executors and an executrix. On July 28, 1893, the executors, as administrators pendente lite, obtained a decree for Rs. 24,588. Bhupendra Nath Basu, the holder of a subsequent mortgage upon the same properties, obtained a decree about the same time. In 1894 the holder of a mortgage prior to either of those above mentioned but secured only upon the Darbhanga property, obtained a mortgage decree for Rs. 77,000, and that property was ordered to be sold under the decree upon June 21, 1895. The Darbhanga property was of very considerable value; that at Monghyr was worth only about Rs. 3000. On June 20, 1895, the executors and executrix agreed to sell their decree for the sum of Rs. 19,000 to Trailokya Nath Basu, who was a brother of Bhupendra and intended to bid for the Darbhanga property upon their joint account. The contract was evidenced in writing, but no assignment took place. On the following day Trailokay Nath Basu purchased the Darbhanga property for Rs. 77,517. The executors and executrix did not bid at the sale, it being, as they alleged, part of the agreement that they should abstain from doing so. Difficulties arose as to the completion of the sale by the assignment of the decree. A part of the Monghyr property had been sold for Government revenue and a balance of Rs. 1046 paid over to the estate of the deceased. Disputes arose as to whether the purchaser was entitled to this sum, and further delay occurred owing to a suit for the administration of the estate. On May 8, 1898, however, the executors and executrix expressed their willingness to make the assignment, recognizing the purchasers right to the above sum. The purchaser required to be assured that the decree existed unimpaired as against the Monghyr property. Drafts were exchanged, but no assignment took place. On June 8, 1898, the executors and executrix applied to enforce their decree by sale. The purchaser required to be assured that the decree existed unimpaired as against the Monghyr property. Drafts were exchanged, but no assignment took place. On June 8, 1898, the executors and executrix applied to enforce their decree by sale. This application was opposed by Trailokya, and it was ultimately held by the High Court (see I. L. R. 30 Calc. 761) that the decree had become barred under the Limitation Act, 1877, Sched. II., art. 179, on June 1, 1898. Meanwhile on June 20, 1898, the present suit had been instituted in the High Court by the then representatives of the estate of Bangsa Gopal Nandi against Trailokya and Bhupendra Nath Basu for specific performance of the contract, or alternatively to recover the amount of the decree. After prolonged and various proceedings not material for any purpose of this report the suit was dismissed by Chitty J., who held that the decree-holders were bound to keep the decree alive, and that having allowed it to become barred they were not entitled to specific performance. The High Court (Sir Francis Maclean C.J., Harington and Fletcher JJ.) reversed this decision. The learned judges found that the agreement was entered into by Trailokya in order to induce the executors to abstain from bidding at the sale, and that upon the faith of the agreement they did so abstain; that since May 8, 1897, the executors and executrix had been ready and willing to make the assignment, but that Trailokya was not anxious to complete his agreement. They held that upon the contract the decree became in equity the property of the purchaser subject to his obligation to pay the purchase price ; that the executors owed no duty to the purchaser to keep the decree alive, since he had not asked them to take any step with that object. They further held that the surviving executor of Bangsa Gopal Nandi should have sued ; subject to his being joined as a plaintiff and to the deduction of the Rs. 1046 above referred to, they made a decree for specific performance of the contract. The appellants to the Privy Council were the sons and representatives of Trailokya Nath Basu, who died subsequently to the judgment appealed from, Bhupendra Nath Basil being joined as a respondent. 1916. March 15, 16, 17, 20. Be Gruyther, K.C., and Sir W. Garth, for the appellants. The appellants to the Privy Council were the sons and representatives of Trailokya Nath Basu, who died subsequently to the judgment appealed from, Bhupendra Nath Basil being joined as a respondent. 1916. March 15, 16, 17, 20. Be Gruyther, K.C., and Sir W. Garth, for the appellants. At the date of the suit the decree was barred under the Limitation Act, 1877, Sched. II., art. 179 Trailokya Nath Basu v. Jyoti Prokash Nandi (( 1903) I. L. R. 30 Calc. 761.); the vendors were consequently not entitled to specific performance. The only persons who could apply to enforce the decree were the executors Code of Civil Procedure, 1882, s. 232 ; Probate and Administration Act, 1881, s. 4. Under s. 232 no interest is acquired in a decree until it is assigned in writing. The effect of that section is similar to that of s. 130 of the Transfer of Property Act, 1882, as to actionable claims Mulraj Khatau v. Vishwanath Prabhuram Vaidya. (( 1912) L. R. 40 Ind. Ap. 24.) The same result follows under s. 54 of the Transfer of Property Act, 1882, if the decree is immovable property. But even if the purchaser was before assignment equitable owner, there was a duty upon the vendors to keep the decree alive Lysaght v. Edwards (( 1876) 2 Ch. D. 499, 566.); Wilson v. Clapham (( 1819) 1 Jac. & W. 36, 38.); Lewin on Trusts, 12th ed., p. 162. Sir Erle Richards, K.C., and Dunne, for the respondents. The purchaser of the decree became the beneficial owner in equity Rayner v. Preston. (( 1881) 18 Ch. D. 1.) The English authorities cited for the appellants apply only to sales of real estate in England. The decree was transferred to the purchaser " by operation of law " within s. 232 of the Code of Civil Procedure, 1882 ; he could have applied in the names of the holders to execute it. A decree is not immovable property and s. 54 of the Transfer of Property Act, 1882, does not apply. Not being immovable property, a decree under the definition in the General Clauses Act, 1868, s. 3 (34.), must be movable property. Consequently under the Indian Con tract Act, 1872, ss. 76, 77, 78, and 86, the property passed to the purchaser, who must bear the loss. Not being immovable property, a decree under the definition in the General Clauses Act, 1868, s. 3 (34.), must be movable property. Consequently under the Indian Con tract Act, 1872, ss. 76, 77, 78, and 86, the property passed to the purchaser, who must bear the loss. Upon the facts the vendors were ready and willing to assign the decree in May, 1898, but the purchaser did not wish to complete. The purchaser had the benefit of the contract to the extent of preventing competition at the sale of the Darbhanga property. Even if the vendors are responsible for the decree being barred as regards the Monghyr property, they are entitled to specific performance subject to compensation Specific Relief Act, 1877, ss. 13 and 14. De Gruyther, K.C., replied. March 28. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal from the decree, dated March 1, 1909, of the High Court at Calcutta, which on appeal set aside the decree, dated April 6, 1908, of Chitty J., who had tried the suit under the original jurisdiction of that Court. The suit was brought to obtain a decree for the specific performance of an agreement, dated June 21, 1895, by which the original defendant Trailokya Nath Basu, now deceased, had agreed to purchase from the executors and the executrix (hereinafter referred to as the executors) of Bangsa Gopal Nandi for the price of Rs. 19,000 a decree and all the rights appertaining thereto which the said executors had obtained on July 17, 1893, against Nrisingha Prokash Misra on a mortgage. Chitty J. dismissed the suit. The High Court in appeal made a decree for specific performance. The appeal has been argued at considerable length, but the material facts upon which the suit and this appeal depend may be briefly stated. The decree which it was agreed that the executors should assign to Trailokya Nath Basu was a decree for sale of certain immovable hypothecated properties, which could also in certain events be executed against the person and other property of the defendant to the suit in which it was made. Owing to the bar of limitation the decree for sale became incapable of execution on June 1, 1898, and thereupon Trailokya Nath Basu refused to pay the agreed price and to take an assignment of the decree ; hence this suit for specific performance. Owing to the bar of limitation the decree for sale became incapable of execution on June 1, 1898, and thereupon Trailokya Nath Basu refused to pay the agreed price and to take an assignment of the decree ; hence this suit for specific performance. The agreement of which it is sought to obtain specific performance was an executory agreement, for the completion of which something remained to be done in order to put the parties in a position relative to each other in which by the preliminary agreement of June 21, 1895, they were intended to be placed. As was pointed out by Lord Selborne L.C. in Wolverhampton and Walsall Ry. Co. v. London and North Western Ry. Co. (( 1873) L. R. 16 Eq. 433, 439.), " the expression specific performance, as applied to suits known by that name, presupposes an executory as distinct from an executed agreement, something remaining to be done, such as the execution of a deed or a conveyance, in order to put the parties in the position relative to each other in which by the preliminary agreement they were intended to be placed." In this case what remained to be done was, on payment by Trailokya Nath Basu of the agreed price, the transference to him of the decree for sale of July 17, 1893. Such a transfer of the decree to Trailokya Nath Basu could, by reason of s. 232 of the Code of Civil Procedure, 1882, be effected only by an assignment in writing. On and after June 1, 1898, the decree, as a decree capable of being executed, could not by reason of the bar of limitation be assigned to Trailokya Nath Basu. It had become a dead decree, whereas the decree, whatever might be its value, which he had agreed to purchase, and which the executors had agreed to assign to him, was a decree capable of execution. It has been contended on behalf of the respondents to this appeal that it was the duty of Trailokya Nath Basu, and was not the duty of the executors, to keep the decree alive after June 21, 1895. That is a contention which, in their Lordships opinion, cannot be maintained. As the decree had not been transferred by an assignment in writing to Trailokya Nath Basu, he could not by any application to the Court have kept the decree alive. That is a contention which, in their Lordships opinion, cannot be maintained. As the decree had not been transferred by an assignment in writing to Trailokya Nath Basu, he could not by any application to the Court have kept the decree alive. The respondents are asking for a decree for the specific per-formance of an agreement which they, on their part, are unable to perform. Their Lordships will humbly advise His Majesty that this appeal should be allowed, the decree of the High Court in appeal should be set aside with costs, and the decree of Chitty J. should be restored. The plaintiff-respondents must pay the costs of this appeal.