9911796707
TMI Blog1931 (4) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ok a sale deed of the suit property from defendants 11 and 12, and this was attested by defendant 1, the judgment debtor. It is said that on the same occasion cowles were executed to defendant 4 who is a divided brother of defendant 1, and to defendants 9 and 10, sons of a brother of defendant l's wife. There is a promissory note, Ex. E, filed in evidence said to have been executed by these lessees at the same time and place in respect of an advance of money for cultivation expenses. A few days later, on 4th August 1909, the plaintiff leased the property, under a registered lease-deed, Ex. B, to these same lessees for a term of five years. He brought the present suit because these lessees have repudiated his title and set up the adverse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff. The learned Subordinate Judge's observations upon the former question are contained in para. 7 and 10 of his judgment. 3. In para. 7 he mentions various considerations bearing upon the question of delivery but records no explicit finding upon that point. He then goes on to consider the applicability of Section 47 as though he had finally disposed of the question of fact whether or not delivery had taken place, because it cannot be contended that if delivery had taken place, Section 47 would have application. Later on, in para. 10 he deals with the specific point which arises from the attestation of the sale deed by defendant 1, declining to draw any inference from that circumstance that defendant 1 had agreed to deliver pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull and void. But I think that the application of the rule can only be sustained by means of an argument which confounds (auction-purchaser with decree-holder. When the two are combined in one person, it is plainly qua auction-purchaser land not qua decree-holder that he gets possession, and that act does not therefore constitute satisfaction of the decree. Such an application of the rule would enable a decree-holder who had once bought the property and received possession out of Court to apply all over again in execution which seems absurd. I think there is no substance in this argument. 5. The plaintiff's precise case has perhaps not been very clearly stated in the plaint or elsewhere. It appears to be that on the occasion of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the land through defendant 1 directly or indirectly through defendants 11 and 12. [This second appeal coming on for final hearing after receipt of the finding from the lower appellate Court upon the issue referred by this Court for trial, the Court delivered the following] 8. Judgment-- The learned Subordinate Judge finds upon the issue referred to him that the plaintiff did not obtain possession of the land either directly or indirectly through defendants 11 and 12. I accept this finding. The further question therefore arises whether the plaintiff is entitled to recover the price of the land from his vendors. The learned Subordinate Judge in the judgment delivered before the remand has held that this claim is barred by limitation. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that time would begin to run for such a suit from the date of contract, I think that the learned Subordinate Judge is right in holding that the cause of action for refund of the purchase money would not simultaneously arise, but would only become available when the vendors became incapable of carrying out their undertaking. Before that occasion arose I do not think that the vendees could have sued, alleging a breach of the contract of title, for the return of the purchase money. The point does not seem to be covered by authority, none of the types of cases referred to in Subbaroya Reddiar v. Rajagopala Reddiar AIR 1915 Mad 708 being on all fours with this one. In Tulsiram v. Murlidhar (1902)26Bom.760 the facts constituted a partial failur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding its subject-matter. There was an appeal by the plaintiff and No. 13 of his grounds of appeal complains that the lower. Court had altogether ignored his alternative claim for the refund of the purchase money from defendants 11 and 12. Upon this appeal the Subordinate Judge's Court gave a decree for this refund. The judgment contains no allusion to any objections raised regarding the amendment of the plaint and it is to be inferred that no such objections were raised. The matter does not stop, there because in the memorandum of second appeal filed by these respondents themselves, although they took exception to the decree for refund, no attempt was made to resist the claim on the specific ground now urged, that the plaint had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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