JUDGMENT : Nagendra Prasad Singh, J. Plaintiff is the appellant in this appeal. The plaintiff, Dehri Rohtas Light Railway Company Limited (hereinafter to be referred to as the Company) had entered into an agreement with the District Board, Shahabad (hereinafter to be referred to as 'the District Board') in the year 1924 under which the District Board had agreed to provide lands and other concessions to the Company for running railway within the area of the District Board. Some dispute arose in connection with the said agreement between the Company and the District Board, which was referred to arbitration. One of the disputes referred to, according to the Company, was in respect of payment of cess under the provisions of the Cess Act, 1880. The Board of Arbitrators gave an award dated 22.2.1953. On the basis of that award fresh agreement was executed on 7.8.1953 incorporating different terms and conditions. One of the terms of the agreement was that the Company shall in consideration of its use and occupation of roads and lands belonging to the District Board, pay by way of rent a sum of Rs. 30,000/- per annum. The other term of the agreement, which is relevant for the present case, was that the Company shall pay a further sum of Rs. 10,000/- per annum to the District Board in full discharge of its liability for cess in respect of the Railway under the Cess Act and in event of liability for cess in any year exceeding Rs. 10,000/- the District Board shall pay the excess and indemnify the Company. 2. According to the plaintiff-Company, inspite of the aforesaid stipulation regarding payment of cess by the District Board in excess of an amount of Rs. 10,000/- for any particular year, the District Board failed to discharge its liability and the Additional Collector, Shahabad on 26.7.1963 demanded payment of cess amounting to Rs. 6,52,810.49 in respect of cess dues for the years 1953-54 to 1962-63. Another sum of Rs. 3,33,988.84 was demanded by the Cess Deputy Collector in respect of the dues for the years 1963-64 to 1966-67. On the basis of the aforesaid averments, the Company sought declaration that the Company is liable to pay a consolidated sum of Rs. 40,000/- per annum on account of rent and cess to the District Board and in event of liability for cess in any year exceeding Rs. On the basis of the aforesaid averments, the Company sought declaration that the Company is liable to pay a consolidated sum of Rs. 40,000/- per annum on account of rent and cess to the District Board and in event of liability for cess in any year exceeding Rs. 10,000/- the District Board had to pay the same to the cess authorities. It also made a prayer for permanent injunction against the State and its officials from making any demand in respect of cess from the Company. 3. The defence of the District Board was that the aforesaid agreement dated 7.8.1953 was entered into because of the fraudulent conduct of the Company in suppressing true figures in respect of amount of cess payable. According to the District Board, the agreement was void and no advantage can be derived on the basis thereof. On behalf of the defendant State it was asserted that any award given or any agreement entered into between the Company and the District Board was not binding on the State, the State being not a party to that agreement, and in respect of a statutory liability to pay cess to the Collector of the District there could not have been any agreement in contravention of the provisions of the Cess Act. 4. Learned Subordinate Judge held that the allegation of the District Board that the agreement (Ext. 1/b) was fraudulent was incorrect, but, according to him, such agreement required registration, and, as such it cannot be used for any purpose other than for collateral purposes. He also held that the said agreement was not binding on the State and its officials who were not party to it. He further held that the agreement was illegal and invalid and the suit cannot be decreed in view of section 20 of the Specific Relief Act. On the aforesaid findings, the suit of the Company was dismissed. 5. Mr. A.K. Sen, learned counsel appearing for the Company, submitted that what ever may be said so far as the State of Bihar is concerned, the agreement in question was binding on the District Board, and the District Board cannot absolve itself of the liability of paying cess in excess of Rs. 10,000/- per annum. 5. Mr. A.K. Sen, learned counsel appearing for the Company, submitted that what ever may be said so far as the State of Bihar is concerned, the agreement in question was binding on the District Board, and the District Board cannot absolve itself of the liability of paying cess in excess of Rs. 10,000/- per annum. In other words, learned counsel did not challenge nor could he have challenged, the finding of the learned Subordinate Judge that the State of Bihar or the cess authorities are not Bound by the agreement entered into by the Company and the District Board, but, according to the learned counsel, the liability of the Company to pay cess in accordance with the provisions of the Cess Act for any particular year in excess of Rs. 10,000/- is to be discharged by the District Board, or in case the Company is made to pay, it has to be reimbursed by the District Board. Learned counsel also conceded that the finding of the learned Subordinate Judge that the agreement (Ext. 1/b) required registration in view of sub-section (1) of section 17 of the Indian Registration Act, because some of the clauses of the agreement purport to create right and interest of the Company in the immovable property of the District Board. But, according to him, the clause, which deals with payment of cess, has nothing to do with creation of any right, title or interest in any immovable property. That clause of the agreement can be looked into for the purpose of ascertaining the rights and liabilities of the parties to the agreement in respect of payment of cess, and this will amount to receiving it as evidence for collateral purposes which is permissible under proviso to section 49 of the Registration Act. 6. Clause 9 of the agreement, which is relevant for the present case is as follows :- "9(a). That the Company shall pay a further sum of Rs. 6. Clause 9 of the agreement, which is relevant for the present case is as follows :- "9(a). That the Company shall pay a further sum of Rs. 10,000/- (Rupees ten thousand only) per annum to the Board in two equal instalments in the first week of January and July each year, in full quit and discharge of its liability for cess in respect of the railway under the Bengal Cess Act IX of 1880 irrespective of the profits or losses made by the Company on its railway business so long as the cess, happens to be levied and the Board shall make arrangements to pay to the Cess Collector whatever cesses may be demanded from the Company in respect of the Railway by the Cess Collector. (b) That in the event of the liability for cess in any year exceeding Rs. 10,000 as aforesaid, the Board shall itself undertake to pay the excess and shall indemnify the Company in respect of all cesses in respect of Railways. (c) That if the Board succeeds in its endeavours to secure exemption from payment of cesses in respect of the Railways, the Company shall nevertheless continue to pay to the Board the said sum of Rs. 10,000 in two equal instalments as aforesaid as and for rent due for the user and occupation by the Company of the roads and lands belonging to the Board for the purpose of the Railways.” On a plain reading of this clause there should not be any difficulty in holding that it simply creates a liability on the part of the District Board to pay the amount in excess of Rs. 10,000/- payable in any year as cess by the Company. It does not create any interest or title in any immovable property. As such, in a suit for specific performance of contract this can be looked into. 7. Now it has to be examined as to whether the aforesaid term is enforceable in law and as to whether the Company can get a decree, as prayed for. In ORDER :to answer this question, certain provisions of the Cess Act have to be looked into. Section 5 provides that all movable properties in a district shall be liable to the payment of local cess. In ORDER :to answer this question, certain provisions of the Cess Act have to be looked into. Section 5 provides that all movable properties in a district shall be liable to the payment of local cess. Section 6 lays down that the local cess shall be assessed on the annual value of the lands or on annual net profits from mines, tramways, railways etc. This section also prescribes the rate of local cess. Section 41 is a provision regarding payment of cess by holder of estate, tenure or cultivating raiyat. Section 72, however, is the provision in respect of payment of cess by owner of mines, tramway, railways etc. It says that before close of each year the Collector of a district shall cause a notice to be served upon an owner/ occupier of every mine and every tramway, railway and other immovable property, requiring such owner/occupier to lodge a return of net annual profits from such property. Thereafter, under section 80 such Collector of the district shall cause to be served on the owner/occupier of every property assessable in respect of payment of cess, a notice showing the amount of local cess payable in respect of such property. It also enjoins that the local cess payable for any year in respect of property in question "shall be paid to the Collector of the district". 8. In view of the aforesaid provisions, there cannot be any dispute that Railways are required to file return of the annual net profits which is subject to the payment of cess and, thereafter, they have to pay the cess to the Collector of the district. In face of this specific provision, I am not able to appreciate as to how the Company and the District Board entered into an agreement, saying "the Company shall pay a further sum of Rs. 10,000 (rupees ten thousand only) per annum to the.........each year in full quit and discharge of its liability for cess in respect of the railway under the Bengal Cess Act IX of 1880." Learned counsel appearing for the Company, however, argued that the purpose of this clause was not to discharge the liability of the Company for any amount in excess 'of Rs. 10,000/-, but to create a liability on the District Board for payment of cess in excess of Rs. 10,000/- and this was permissible in law. 10,000/-, but to create a liability on the District Board for payment of cess in excess of Rs. 10,000/- and this was permissible in law. In certain circumstances, a person can undertake to discharge the liability of another person under any enactment or to indemnify him in respect of excess payment for some consideration. But, even in such cases, the person undertaking to indemnify cannot agree to a clause to extinguish the liability or to modify the liability, which is statutory in nature. In the case of Maritime Electric Co. Ltd. v. General Dairies Ltd. (AIR 1937 Privy Council 114) it was pointed out:- "A contract to do a thing which cannot be done without a violation of the law is clearly void." However, I shall proceed on the assumption that although this clause says that Rs. 10,000/- shall be paid to the District Board in full quit and discharge of the liability of the Company under the Cess Act, nevertheless, for all practical purposes under this clause the District Board had undertaken to pay to the Cess authorities or to indemnify the Company any amount it excess; of Rs. 10,000/- per annum. 9. Learned Advocate-General, who appeared on behalf of the State, however, pointed out that even if clause 9 of the agreement aforesaid is treated as a contract to indemnify or to pay the excess liability of the Company, it cannot be enforced in the facts and circumstances of the present case and no executable decree can be passed in favour of the Company in view of the pleadings and reliefs prayed for. In the plaint, the Company after pleading about the details of the agreement aforesaid has mentioned about the demand notices issue by the Additional Collector and the Deputy Collector Incharge of Cess. Then it has sought declaration under relief no. (a) that under the award and the agreement, the Company is liable to pay only Rs. 40,000/- per annum on account of rent and cess to the District Board (defendant no. 1). Relief no. (b), which is relevant, is as follows :- "(b) It be further declared that in the event of the liability for cess in any year exceeding Rs. 10,000 defendant no. 40,000/- per annum on account of rent and cess to the District Board (defendant no. 1). Relief no. (b), which is relevant, is as follows :- "(b) It be further declared that in the event of the liability for cess in any year exceeding Rs. 10,000 defendant no. 1 shall pay the excess to the Cess Authorities and shall indemnify the plaintiff in respect of all demands of cess made from the plaintiff." Then relief (c) is for declaration that all demands of cess payable by the plaintiff will be realised by defendants 2 to 5 (who are State of Bihar and cess authorities) from defendant no. 1. Under relief no. (d) a permanent injunction has been sought for against defendants 2 to 5 from making any demand in respect of cess from the plaintiff. Learned counsel appearing for the Company conceded that relief no. (a) aforesaid cannot be granted because for that purpose clause 8 of the agreement (Ext. 1/b), which incorporates the term for payment of Rs. 30,000/- as a rent for use and occupation of the lands and roads belonging to the District Board has to be looked into which is hit by section 49. It cannot be received in evidence because it is one of the terms in respect of creation of an interest in the lands of the District Board, the deed of agreement itself being unregistered. He had to concede that even relief nos. (c) and (d) cannot be granted because defendant nos. 2 to 5, the State and its authorities were not party to the agreement which is sought to be enforced. In such a situation, if at all the plaintiff is entitled to any relief, it is relief no. (b). Assuming that relief no. (b) is decreed in favour of the plaintiff Company, the effect whereof will be that there will be a declaration that in the event of liability for cess in any year exceeding Rs. 10,000/- the excess amount shall be payable by defendant no. 1, the District Board, to the Cess Authority. It is an admitted position that the Company has not yet discharged its liability under the Act for the periods in question and the amounts are still in arrears. 10,000/- the excess amount shall be payable by defendant no. 1, the District Board, to the Cess Authority. It is an admitted position that the Company has not yet discharged its liability under the Act for the periods in question and the amounts are still in arrears. If the Company had discharged its liability under the Act, then it could have prayed for a decree on the District Board for realisation of that amount with interest as a consequential relief. Relief (b) cannot be held to be a prayer for decree for specific performance of contract so that if a decree is granted, it can be executed in accordance with ORDER :21, Rule 32 of the Code of Civil Procedure. For a decree for specific performance of contract the rights and liabilities of the parties to the agreement have to be ascertained and determined. In the plaint only some details of payment made by the Company to the Board have been stated, but the details of the liability of the Company for payment of cess year-wise which under the terms of the agreement had to be discharged in excess of Rs. 10,000/- each year by the District Board have not at all been mentioned. In such a situation, it cannot be said that the suit is for specific performance of any contract so as to attract the provision of ORDER :21, Rule 32 of the Code of Civil Procedure during execution. It is well known that cases which are covered by ORDER :21, Rule 32 of the Code of Civil Procedure are those where decree not only declares the rights and liabilities of the parties to the suit, but also directs the defendant to do or refrain from doing any act. In my view, on the averments made in the plaint only a declaratory decree in terms of relief (b) can be granted. But, to grant a declaration, Unconnected with any particular year or particular amount payable or paid, in my view, will lead to passing of a decree which will on face of it be unexecutable. In spite of repeated questions, the learned counsel appearing for the appellant-Company could not answer as to how a decree in terms relief (b) shall be executed. It is well settled that a court should not pass a decree which cannot be executed. 10. In spite of repeated questions, the learned counsel appearing for the appellant-Company could not answer as to how a decree in terms relief (b) shall be executed. It is well settled that a court should not pass a decree which cannot be executed. 10. Learned Advocate-General also urged that the suit should not be decreed in view of section 20 of the Specific Relief Act because performance of the contract on the part of the District Board will involve hardship on it which it did not foresee and it will be inequitable to enforce specific performance of such a contract. This argument was based on assumption that if the District Board is held liable to pay the cess liability of the Company which is more than Rs. 10,000/- every year, then the District Board will be getting Rs. 30,000/- as rent under clause 8 and will be paying many thousand more than that amount towards discharging the cess liability of the Company which per se is inequitable and could not have been foreseen. In view of my finding above that even if it is held that clause 9 of the agreement (Ext. 1/b) was a valid agreement, no executable decree can be granted in favour of the plaintiff, I do not consider it necessary to decide this question. 11. Before I part with the JUDGMENT :, I may mention that an attempt was made on behalf of the Company to urge that the expressions "net annual profits of such property" occurring in section 72 and other sections of the Cess Act do not mean net annual profits derived by the railway as a whole, but only the profits arising from the immovable property, and in that connection our attention was drawn to a Bench decision of this Court in a writ case filed on behalf of the Company for subsequent years: The Dehri Rohtas Light Railway Co. Ltd. v. State of Bihar and others (1979 Bihar Bar Council Journal 428) where this contention has been accepted. I am afraid, that question cannot be agitated in this appeal because that will be beyond the scope of the suit. No such averment has been made or relief has been prayed for in the suit. As such, it is not open to the Company to raise this question in this appeal. 12. I am afraid, that question cannot be agitated in this appeal because that will be beyond the scope of the suit. No such averment has been made or relief has been prayed for in the suit. As such, it is not open to the Company to raise this question in this appeal. 12. In the result, the appeal fails and is dismissed, but, in the circumstances of the case, there will be no ORDER :as to costs.