In India, the historical and artificial distinction between equity and law does not exist and equity itself is enforced as law with all its built in limitations. Our equitable jurisdiction is not hidebound by tradition and blinkered by precedent, though trammelled by judicially approved rules of conscience. When law speaks in positive terms equity may not be invoked against it, but, while applying the law, the court can and must ameliorate unwitting rigours inflicted by legaligms, where there is
room for play by the use of equity.
Undefined rules of equity are unruly horses and in India legal rights cannot be chased out by nebulous notions of good conscience labelled equity. In a sense, he is right but to deny equitable jurisdiction for courts to promote justice is too late and too tall a jurisprudential proposition in any system. For, equity is not anti-law but a moral dimension of law rather, it is the grace and conscience of living law acting only interstitially. The quintessence of this concept may be stated thus “All great systems or jurisprudence have a mitigating principle or set of principles, by the application of which substantial justice may be attained in particular cases wherein the prescribed or customary forms or ordinary law seem to be inadequate. From the point of view of general jurisprudelice, “equify” is the name which is given to this feature or aspect of law in general.”(1) Certainly when law speaks in positive terms, equity may not. be, invoked against it; but while applying the law the Court can and must (1) American Jurisprudence 2nd Edn. Vol. 27 p. 516.
ameliorate unwitting rigours inflicted by legalisms, where there is room for play, by the use of equity. After all, equity is the humanist weapon in the Court’s armoury.
Equity jurisprudence is flexible and meets the challenge of new situations without the law. “New days may bring the people into new ways of life and give them new outlooks: and with those changes there may come a need for new rules of law ………… (1)” But legislation lags. Here steps in equity for, the role of a judge, is to develop the law-and adapt it to the needs of the members of his society (See Modern Law Review, Vol. 34,1971-p. 28). Nor is Shri Sen right when he contends that his client admittedly not being guilty of any blamable conduct, therefore, should not be deprived of any part of his decree. Equity is not penalty but justice and event where neither party, as here, is at fault, equitable considerations may shape the remedy. Lord Denning spoke of the new equity that was needed (5 Current Legal Problems 1952 p. 1) and Marshall said that the time to write finis to the role of the judiciary in the field of equity had not come (See Law, Justice & Equity Essays in tribute to Keeton p. 66). of course not novel sentiments but well-settled rules, not the Chancellor’s foot but standard-sized shoes, serve the judge in these pathless woods. True, as Keeton said :(2) ” an equitable doctrine may prove malleable in the hands of Lord Denning but intractable in the hands of Lord Justice Harman.”
In short, our equitable jurisdiction is not hide bound by tradition and blinkered by precedent, though trammelled by judicially approved rules of conscience. With this background we will glance through the decided cases, alive to the fact that they cannot necessarily furnish in every case a clear legal lodestar to steer us sure ashore. In the present case the equity arises largely from the iniquity of a’ foreign government’s refusal,for reasons we cannot guess, to carry out the directions of its municipal courts. This uniqueness cannot be missed.
(1) Current Legal Problems, 1952 Vol. 5, Stevens & Song Ltd., London p.1.
(2) Keeton-Sheriden on “Equity” p. 37, 1969 Edn. Sir Isaac Pitrnan and Sons Ltd. London, Sri Desai drew our attention to Chowthmull Manganmull v. The Calcutta Wheat and Seeds Association(1); Sheo Gholam Sahoo v. Rahut Hossein(2); Mehar Chand v. Shiv Lal & Anr.(3); Kothamasu Venkata Subbayya v. Udatha Pitchayya(4); Ex parte Banner In re Keyworth(5) and Bird v. BarstoW(6). A few other cases also were cited but since nothing fresh is contributed by them reference is not made to them. What are the principles vis-a-vis the problem here ? That a mere security deposit does not become an automatic satisfaction of the decree when the appeal fails is simple enough. But when the judgment debtor has paid into court cash by way of security conditioned by its being made available to discharge the decree on disposal of the appeal and for means beyond the control or conduct of the judgment debtor the money is not forthcoming to liquidate the liabilities can he be asked to pay over again ? In Chowthmull Manganmull v. The Calcutta Wheat and Seeds Association (Supra), Sanderson C. J. observed ( at p. 10 1
3) “In my judgment the effect of the order was that the money was paid into Court to give security to the plaintiffs that in the event of their succeeding in the appeal they should obtain the fruits of their success. See Bird v. Barstow (6). It may be put in other words, viz., that the amount paid into Court was the money of the plaintiff respondents subject to their succeeding in the appeal and thereby showing that the decree in their favour by the learned Judge on the Original Side was correct. The words which were used by Lord Justice James in the case of Exparte Banner, in re Keyworth (5) are applicable to this case. The learned Lord Justice said that the effect of the order was that ‘the money which was paid into Court belonged to the party who might be eventually found entitled to the sum.”
The head note in Sheo Gholam Sahoo v. Rahut Hossain (supra) reads :
” When money or moveable property has been deposited in Court on behalf of a judgment- debtor in lieu of security, for the purpose of staying a sale in execution of a decree pending an appeal against an order directing the sale, which is afterwards Confirmed on appeal, neither the depositor, nor the judgment-debtor, can afterwards claim to have such deposit refunded or restored to him, notwithstanding that the decree holder has omitted to draw it out of Court for more than three years, and that more than three years have elapsed since any proceedings have been taken in execution of the decree, and that the decree for that reason is now incapable of execution.
(1) I.L.R. 51 Cal. 1010. (2) I.L.R. 4 Cal. 6. (3) (1955) 57 P.L.R. 350.(4) A.I.R. 1960 Andhra Pradesh 349, (5) 1874(9) Ch. 379. (6)  1 Q.B.D. 94, Semble.-When money or moveable property is deposited in Court in such a case as the above, the Court, upon confirmation of the order for a sale, holds the deposit in trust for the decree-holder, and is at liberty to realize it and pay the proceeds over to him to the extent of his decree.”
The equity in favour of an obligor, who has deposited the obligated sum into Court pending proceedings in which he assails his liability, is underscored by these rulings and the principle cannot be different merely because the obligee who ordinarily would have, without reference to the obligor, drawn the money from Court is unable to get it for extra- legal reasons as here. We are of the view that the justice of the case, without crossing the path of any legal provision, warrants our upholding the equity set up by the appellant., Had the decree been executed in the haleyon days in the Lahore Court this deposit would have been credited and adjusted and the freak consequences of Partition should not disadvantage the judgment debtor. In India the historical and artificial distinction between Equity and Law does not exist and equity itself is enforced as law with all the built-in limitations we have adverted to.