dedol-hf/india-case-legal-rag huggingface dataset:
JUDGMENT:
    CIVIL  APPELLATE JURISDICTION : Appeal from  a  judgment
and  decree of the High Court of Judicature at  Patna  dated
29th August, 1947, in First Appeal No. 13 of 1945, modifying
a decree of the Subordinate Court of Gaya in O.S. No. 59  of
1943: Civil Appeal No. 82 of
278
    S.P.  Sinha  (C. R. Pattabhi Raman and B.K.  Saran  with
him) for the appellant.
   Udai Bhan Chaudhry for respondents Nos. 1 and 2.
Haris Chandra (N. C. Sen, with him) for respondents Nos.
3 to 7.
    1951.  February 9.  The judgment of the Court was deliv-
ered by
    MUKHERJEA J. --This appeal is on behalf of the plaintiff
and  it arises out of a suit for specific performance  of  a
contract  to sell a house in the town of Gaya, belonging  to
the  defendants second party who, it is alleged,  agreed  to
sell  the  house to the plaintiff but  subsequently  resiled
from the agreement and sold the same to the defendants first
party who purchased it with notice of the contract.
    The  plaintiff's case, in substance, iS that in  Septem-
ber, 1941, the defendants second party, who owned a house at
Gaya,  entered into negotiations for sale of the same,  with
one  Jadu  Ram,  and the title deeds of  the  property  were
actually  handed  over  to the  latter.  These  negotiations
failed and the second party defendants thereupon  approached
the  plaintiff firm and a contract was entered into  by  and
between  them  sometime towards the end  of  October,  1945,
under  which the former agreed to sell to the  latter  their
house at Gaya for a consideration of Rs. 34,000. Out of this
consideration, a sum of Rs. 30,000 was paid by the plaintiff
firm on behalf of the vendors to a creditor of the latter on
28th October, 1941. The vendors in their turn put the plain-
tiff  in possession of the house agreed to be sold  in  part
performance  of the contract and promised to execute a  con-
veyance as soon as the title deeds were returned to them  by
Jadu Ram and the balance of consideration money amounting to
Rs.  4,000 was paid by the plaintiff. The second  party  de-
fendants,  however, went back on their promise and  did  not
execute the conveyance in favour of the plaintiff even after
they  got back their title deeds from Jadu Ram; and  on  the
other hand, they sold the house to the defendants first
279
party on August 13, 1943. The plaintiff was thus obliged  to
bring  this suit, claiming specific performance of the  con-
tract of sale.
    The  suit was contested by both sets of defendants.  The
second  party  defendants contended inter alia  that    they
never agreed to sell their house at Gaya to the
plaintiff, and the story of a contract of sale as set up  by
the  plaintiff was entirely false. They admitted  that  they
were in need of money and hence approached the plaintiff for
a  loan and the plaintiff did advance to them a sum  of  Rs.
30,000  carrying interest at 6% per annum.  It was  entirely
for  facilitating payment of interest due on this  loan  and
not  in  part performance of the contract of sale  that  the
plaintiff was put in possession of the same.
    This   defence  was reiterated by the first  party.  de-
fendants  who further pleaded that they were bona fide  pur-
chasers  for value having no notice of any contract of  sale
with the plaintiff.
    The  Subordinate Judge, who heard the suit, came to  the
conclusion, on the evidence adduced by the parties, that the
story  of a contract of sale, as alleged  by the  plaintiff,
was not established and it was not in pursuance of any  such
contract  that  the plaintiff was put in possession  of  the
house.  It was held that the defendants' story was true  and
that the  plaintiff  did advance a sum of Rs. 30,000 to  the
defendants  second party, but this was by way of a loan  and
not  as part payment of the consideration money. So  far  as
the first party defendants were concerned, it was held  that
they Were bona fide  purchasers for value without notice. In
view of these findings, the Subordinate Judge dismissed  the
plaintiff's claim for specific performance but as the second
party defendants admitted that they had taken an advance  of
Rs.  30,000 from the plaintiff, a money decree was given  to
the  plaintiff  for this sum against these  defendants  with
interest  at  6% per annum from the date of  the  suit  till
realisation.
Against  this decision, the plaintiff took an appeal  to
the High Court at Patna, and the second party
280
defendants  also  filed  cross-objections  challenging   the
propriety of the money decree that was passed against  them.
The  appeal was heard by a Division Bench of the Patna  High
Court  who,  by their judgment dated August 29,  1947,  dis-
missed  the appeal of the plaintiff and allowed  the  cross-
objections  preferred  by the second party  defendants.  The
learned  Judges held, concurring with the trial court,  that
no case of concluded contract between the parties was estab-
lished by the evidence adduced in the case, and the fact  of
the plaintiff being put in possession of the house could not
be  regarded as an act of part performance of any such  con-
tract. The High Court agreed with the trial judge in holding
that  the  sum of Rs. 30,000 was advanced as a loan  by  the
plaintiff  to the second party defendants, though  the  evi-
dence was not very clear regarding payment of interest  upon
it, and that the first party defendants were purchasers  for
value without notice.  The High Court held further that even
if  there was a contract, its terms were vague  and  indefi-
nite,  and as one of the vendors was a minor, no  relief  in
equity  by  way  of specific performance  of   the  contract
should   be  given in this case as  it  would  substantially
prejudice the interest of the minor.  In the opinion of  the
High  Court,  the money decree granted  against  the  second
party  defendants was not warranted in law as no case  of  a
loan  was made by the plaintiff in the plaint and no  relief
was claimed on that basis.  The result was that the suit was
dismissed  in  its entirety and the decree for  recovery  of
money that was made in favour of the plaintiff by the  trial
court  was set aside.  It is against this judgment that  the
plaintiff has come up on appeal to this court.
The learned counsel appearing for the appellant contends
before  us  that the findings upon which  the  courts  below
disbelieved  the  story of the plaintiff and  dismissed  the
claim  for specific performance are not proper  findings  of
fact which could be legitimately inferred from the  evidence
adduced in' this case.  In the alternative it is argued that
the  High  Court was wrong in setting aside the  decree  for
money which was given
281
against the second party defendants by the trial judge.
The first contention put forward by the learned  counsel
appears  to us to be plainly unsustainable. When the  courts
below  have given concurrent findings on pure  questions  of
fact,  this court would not ordinarily interfere with  these
findings  and review the evidence for the third time  unless
there  are  exceptional circumstances  justifying  departure
from  this normal practice. The position may undoubtedly  be
different if the inference is one of law from facts admitted
and  proved or where the finding of fact is  materially  af-
fected  by violation of any rule of law or  procedure.   The
practice adopted by this court is similar to what has always
been  acted  upon by the Judicial Committee.  To  quote  the
words  of Lord Thankerton in Bibhabati v.  Ramendra  Narayan
(1)  "it  is  not by any means  a  cast   iron   practice'';
there   may  occur  cases of unusual  nature   which   might
constrain  us to interfere with the concurrent  findings  of
fact  to  avoid miscarriage of justice. The case  before  us
however,  has  nothing  unusual in it and  involves  a  pure
question of fact.  There is no document in writing in  proof
of  the agreement upon which the plaintiff's case  is  based
and  the decision hinges primarily upon appreciation of  the
oral  evidence  that has been adduced by the  parties.   The
trial judge, who had the witnesses before him, was the  best
person  to  weigh  and appraise their  credibility  and  the
conclusions which he arrived at, have been affirmed in their
entirety  by  the High Court on appeal.   In  these  circum-
stances, we see no reason whatsoever to go beyond the  facts
which  have  been found against the appellant  by  both  the
courts below.
    As  regards  the  other point, however, we  are  of  the
opinion  that the decision of the trial court was right  and
that the High Court took an undoubtedly rigid and  technical
view in reversing this part of the decree of the Subordinate
Judge.   It is true that it was no part of  the  plaintiff's
case as made in the plaint that
282
the  sum  of Rs. 30,000 was advanced by way of loan  to  the
defendants  second party.  But it was certainly open to  the
plaintiff  to  make an alternative case to that  effect  and
make a prayer in the alternative for a decree for money even
if the allegations of the money being paid in pursuance of a
contract of sale could not be established by evidence.   The
fact  that such a prayer would have been  inconsistent  with
the  other prayer is not  really material.  A plaintiff  may
rely upon different rights alternatively and there is  noth-
ing  in  the Civil Procedure Code to prevent  a  party  from
making  two  or more inconsistent sets  of  allegations  and
claiming  relief thereunder in the alternative.   The  ques-
tion,   however, arises whether, in the absence of any  such
alternative  case in the plaint it is open to the  court  to
give him relief on that basis.  The rule undoubtedly is that
the court cannot grant relief to the plaintiff on a case for
which there was no foundation in the pleadings and which the
other  side  was not called upon or had  an  opportunity  to
meet.   But when the alternative case, which  the  plaintiff
could  have made, was not only admitted by the defendant  in
his  written statement but was expressly put forward  as  an
answer  to the claim which the plaintiff made in  the  suit,
there  would be nothing improper in giving the  plaintiff  a
decree  upon the case which the defendant himself makes.   A
demand  of the plaintiff based on the defendant's  own  plea
cannot possibly be regarded with surprise by the latter  and
no question of adducing evidence on these facts would  arise
when  they were expressly admitted by the defendant  in  his
pleadings.   In such circumstances, when no  injustice   can
possibly  result to the defendant, it may not be  proper  to
drive the plaintiff to a separate suit.  As an  illustration
of  this principle, reference may be made to the  pronounce-
ment of the Judicial Committee in Babu Raja Mohan Manucha v.
Babu Manzoor (1).  This appeal arose out of a suit commenced
by  the plaintiff appellant to enforce a mortgage  security.
The  plea of the defendant was that the mortgage  was  void.
This
(1) 70 I.A. 1.
283
plea  was given effect to by both the lower 'courts as  well
as by the Privy Council. But the Privy Council held that  it
was open in such circumstances to the plaintiff to repudiate
the transaction altogether and claim a relief outside it  in
the  form  of restitution under section 65  'of  the  Indian
Contract Act. Although no such alternative claim was made in
the plaint, the Privy Council allowed it to be advanced  and
gave a decree on the ground that the respondent could not be
 prejudiced by such a claim at all and the matter ought  not
to  be  left to a separate suit. It may be noted  that  this
relief  was allowed to the appellant even though the  appeal
was heard ex parte in the absence of the respondent.
   Mr. Harish Chandra appearing for the second party defend-
ants raised the question of interest in connection with  the
plaintiff's claim for a money decree. His contention is that
the  plaintiff could not claim any interest so long  has  he
was  in possession of the house and he could not also  claim
any interest after that, as his clients made a tender of the
sum of Rs. 30,000 by sending a hundi for that amount to  the
plaintiff  by  registered post on July 12, 1943,  which  the
plaintiff  refused to accept. The first part of the  conten-
tion is undoubtedly correct and is not disputed on behalf of
of the plaintiff. We feel difficulty, however, in  accepting
the  second  part  of the contention raised  by  Mr.  Harish
Chandra. The receipt of this hundi was totally denied by the
plaintiff both in the plaint as well as in the evidence  and
it is doubtful whether even if the story was true, it  could
constitute a valid tender in law. The defendants undoubtedly
had  the use of this money all this time and in our  opinion
the  plaintiff  is entitled to some  interest.  The  learned
counsel  appearing  for both the parties,  at the  close  of
their arguments, left this question of interest to be deter-
mined  by us and we think that it would be quite fair if  we
allow  interest on the sum of Rs. 30,000 at the rate  of  4%
per  annum  from  the beginning of September,  1943.  It  is
admitted that the plaintiff's possession of the house ceased
by the end of August, 1943.
284
  The result is that we allow the appeal in part; the decree
made by the High Court is affirmed in so far as it dismissed
the claim for specific performance- The plaintiff,  however,
will be entitled to a money decree for the sum of Rs. 30,000
against the defendants second party with interest at 4%  per
annum from the 1st of September, 1943, to the date of reali-
sation. Each party to this appeal will bear his own costs.
                  Appeal allowed in part.
Agent for the appellant: R.C. Prasad.
Agent for respondents: Tarachand Brij Mohan Lal.
PETITIONER:
KUMAR PASHUPATINATH MALIA & ANOTHER
        Vs.
RESPONDENT:
DEBA PROSANNA MUKHERJEE.
DATE OF JUDGMENT:
04/05/1951
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
CITATION:
 1951 AIR  447            1951 SCR  572
ACT:
     Bengal  Money Lenders Act (X of 1940), ss. 2  (22),  36
(5)--Relief  under s. 36--" Suit to which this  Act  applies
"--Suit in which execution proceeding was pending on Jan. 1,
1939--Execution Case struck off but attachment continuing in
force on Jan. 1, 1939--Applicability of Act----Civil  Proce-
dure Code (V of 1908), O. 21, r. 57--Striking off  execution
case keeping attachment in force--Whether terminates  execu-
tion  proceeding--Sub-mortgagee--Whether assignee  of  mort-
gage--Right to claim protection under s. 36 (5).
HEADNOTE:
     A decree on a mortgage was passed in a suit brought  by
the  representatives in interest of a sub-mortgagee in  1929
and  a personal decree for recovery of the amount  remaining
due after the sale of the mortgaged properties was passed in
1935.   In 1936 the decree-holder started execution  of  the
personal  decree  and  attached certain  properties  of  the
judgment-debtor.   The  decree-holder filed  a  petition  on
January  30, 1937, praying that the execution case  "may  be
struck  off for non-prosecution, keeping the  attachment  in
force" in view of certain negotiations for amicable  settle-
ment, and the court passed an order that the execution  case
"is dismissed for non-prosecUtion, the attachment
573
already effected continuing". On June 2, 1939,  the  decree-
holder  filed  a petition stating that the decree  had  been
adjusted  and  attachment  may  be  withdrawn.   The  Bengal
Money-lenders Act came into force on September 1, 1940,  and
on  January 2, 1941, the legal representatives of the  judg-
ment-debtor filed a suit under s. 36 of the Act praying  for
re-opening the transactions. The question being whether  any
proceeding for execution was pending on or after January  1,
1939,   within  the meaning of the definition of "a suit  to
which this Act applies" contained in s. 2 (22) of the Bengal
Money-lenders Act:
    Held,  per  KANIA  C.J. and DAs J.--That  the  order  of
January 30, 1937, was in form and in substance a final order
of dismissal of the execution petition of 1936. The  attach-
ment  continued  not because there was a  pending  execution
proceeding  but because a special order for  continuing  the
attachment  was made under O. 21, r. 57 of the Civil  Proce-
dure  Code as amended by the Calcutta High Court,  and  not-
withstanding  the  fact that the  attachment  was  continued
there  was  no execution proceeding pending  on  January  1,
1939,  and accordingly the decree sought to be reopened  was
not  one passed in "a suit to which the Act applies"  within
the  meaning  of s. 2 (22) of the Act and the Court  had  no
power  to  re-open the transactions under s.  36   (2).  The
petition  of  June 2, 1939, was also not  a  proceeding  for
execution  but a mere certification by the decree-holder  of
satisfaction of the decree.
    PATANJALI  SASTRI J.--The continuance of the  attachment
notwithstanding  the  dismissal of the  execution  petition,
indicated  that  the proceeding which had  resulted  in  the
attachment was kept alive to be carried forward later on  by
sale  of  the attached property.  Attachment  itself  is  "a
proceeding  in  execution" and so long as it  subsists,  the
proceeding in execution can well be regarded as pending.  In
this  view a proceeding in execution was pending on  January
1, 1939, and the decree must be taken to have been passed in
"a  suit to which this Act applies ".  But inasmuch  as  the
sub-mortgage  to the respondent's predecessor in  title  was
bona fide and he obtained by virtue of the sub-mortgage  the
right  to  sue the original mortgagor for  recovery  of  the
mortgage  debt, the decree-holder was a bona  fide  assignee
and his claim for the entire decree debt was protected by s.
36 (5) of the Act.
    Renula  Bose v, Manmatha Nath Bose (L.R. 72  I.A.  156),
Promode  Kumar Roy v. Nikhil Bhusan Mukhopadhya  (50  C.W.N.
407)  and  Prom ode Kumar Roy v. Nikhil  Bhusan  Mukhopadhya
(L.R. 76 I.A. 74) referred to.
JUDGMENT:
    CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  90  of
1950. Appeal against the Judgment and Decree dated the  22nd
July 1948 of the High Court of Judicature at Calcutta (K. C.
Mitter, and K.C. Chunder J J) in appeal from Original Decree
No. 49 of 1942 arising
74
574
out  of Decree dated the 8th September 1941 of the  Subordi-
nate Judge at Asansole in Suit No. 1 of 1941.
    Purusottam Chatterji (S. N. Mukherjee, with him) for the
appellants.
    Panchanan Ghose, (P. C. Chatterjee,  with  him) for  the
respondent.
1951. May 4. 'the following judgments were delivered :--
    DAS  J.--This appeal arises out of a suit filed  by  the
appellants on January 2, 1941, in the Court of the  Subordi-
nate Judge, Asansole. That suit came to be filed in  circum-
stances which  may now be  stated shortly.
    A  suit  had been instituted by  one  Kumar  Dakhineswar
Malia against Rameswar Malia, Rani Bhaba Sundari and  others
for  partition  of the Searsole Raj Estate.   One  Bhagabati
Charan  Mitra was appointed receiver of that estate in  that
suit. On August 10, 1908, the said receiver with the permis-
sion of the Court which had appointed him as receiver grant-
ed two mining leases, each for 999 years--one in respect  of
5/16  share  of the Malias in Mouza Monohar  Bahal  and  the
other in respect of 230 bighas in village Marich Kota--to  a
firm  then carrying on business under the name and style  of
Laik  Banerjee & Company. On the same day the said  receiver
with like permission mortgaged these properties to the  said
firm  as security for the due repayment of the loan  of  Rs.
100,000  advanced by that firm.  The Malias joined  the  re-
ceiver  in executing the aforesaid leases and the  mortgage.
As a result of these transactions the firm of Laik  Banerjee
&  Company  became  the lessees for 999  years  of  the  two
properties as well as the mortgagee of the lessors' interest
in  the  same.   By diverse processes not  necessary  to  be
detailed,  the  appellants  have become  the  successors  in
interest of the mortgagors  and the respondent Deva Prasanna
Mukerjee has become the successor in interest of the mortga-
gee under the mortgage of August 10, 1908.
575
    On  March 31, 1922, Deva Prasanna filed suit No.  78  of
1922 for enforcing the mortgage of 1908. Preliminary  decree
was  passed in the last mentioned suit on ' July  31,  1928,
and a final decree for sale was made I on February 26, 1929.
In  execution of this final decree the mortgaged  properties
were  sold  at a Court i sale and  were  purchased  by  Deva
Prasanna  for' Rs. 59,000.  This sale was confirmed  by  the
Court on June 30, 1931.  A large sum remaining still due  to
Deva  Prasanna,  he applied for, and on  October  30,  1935,
obtained a personal decree for Rs. 1,27,179-0-6 against Raja
Pramatha  Nath  Malia who had by  inheritance  acquired  the
lessors' interest and become the borrower.
In  1936, Deva Prasanna  started execution case No.  118
of  1936 for execution of the personal decree  and  attached
certain  properties alleging that the same belonged  to  the
Raja. The exact date of the attachment does not appear  from
the  printed record.  The Raja as Sibait of a certain  deity
and his two sons, the appellants before us, objected to  the
attachment  of  these  properties and filed  a  claim  case.
Negotiations  for  settlement  started  and  eventually,  on
January  30, 1937, a petition (Ex. 2) was filed in the  exe-
cuting Court stating as follows :-
    "The judgment debtor having made special requests to the
decree-holder  for an amicable settlement of  the  aforesaid
execution  case, the decree-holder has agreed to  the  same.
But  some time is required to settle the talks and  all  the
terms  etc.   The  judgment debtor has paid  to the decree
holder the costs of this execution amounting to Rs. 76-14-0,
and  he having made requests for this execution  case  being
struck  off  for the present on keeping  the  attachment  in
force, the decreeholder has agreed to it.
    It  is, therefore, prayed that under  the  circumstances
aforesaid,  the  Court  may be pleased to  strike  off  this
execution case keeping the attachment in force."
    Neither  the original nor a certified copy of the  order
made on that date by the executing Court on the
576
above petition is forthcoming but the parties have definite-
ly  agreed  that the order is  substantially  and  correctly
entered  in column 20 of Ex. F which is a certified copy  of
extract from the Register of applications for executions  of
decrees relating to execution     Case No. 118 of 1936.  The
heading  of column 20 is 'Date on which execution  case  was
finally  disposed of and purport of final order." The  entry
in column 20 under that head is:
    "D.  H. admits receipt of Rs. 76-14/- as costs  of  this
case from the J.D. The execution case is dismissed for  non-
prosecution--the  attachment already effected in  this  case
continuing.
                              30th January 1937."
    The entry under column 11 of that very exhibit reads  as
follows :--
    "Claim case automatically drops as the execution case is
dismissed.  It is, therefore, rejected without any  sort  of
adjudication.
                                 30th January 1937."
     In  May  1937, the Searsole Raj Estate came  under  the
charge of the Court of Wards. By a Kobala executed with  the
permission of the Board of Revenue Raja Pramatha Nath  Malia
and his two sons Kumars Pashupati Nath Malia and  Kshitipati
Nath Malia represented by Kumar Kshitipati Nath Malia as the
Manager of the Searsole Raj Wards Estate conveyed a property
known as Senapati Mahal to Deva Prasanna in full  settlement
of his claim under the personal decree against the Raja.  By
an agreement of even date, Deva Prasanna agreed to  reconvey
Senapati  Mahal  to the Kumars if he was paid  Rs.  90,000/-
within  two years from that date. Senapati  Mahal  orginally
belonged to the Raja but had been tranSferred by him to  his
two  sons. A creditor, however, had filed a suit under  sec-