K APPU Vs. K SEVYAR

JUDGEMENT

(1.) This is a revision by the defendant in small cause suit No. 242 of 1955 on the file of the Subordinate Judges Court at Kozhikode decreeing the said suit against him with costs.

(2.) The respondents filed the suit for recovery of a sum of Rs. 1900 with costs. Their case was that the second plaintiff as agent of the first plaintiff entered into a contract with the defendant on 16-11-1951 for the purchase of certain properties noted in the plaint schedule for Rs. 2000/- on the terms mentioned therein. In respect of the said contract a sum of Rs. 200/- was also paid by the second plaintiff on behalf of the first plaintiff to the defendant as advance. The document also was got ready for, being executed by the defendant but the defendant has not complied with the demands of the plaintiffs. The said unregistered and unsigned document prepared by the plaintiffs is marked as Ext. A2 in the suit. While matters stood thus, the properties were brought to sale by the decree holder in O. S.180 of 1951 on the file of the District Munsiffs Court, Kozhikode in execution of the decree obtained against the present petitioner. As the properties were being brought to sale, the first plaintiff deposited the decree amount and thus saved the properties from being sold. Subsequently this suit has been filed for recovery of the said amount from the defendant.

(3.) The main contention of the defendant was that the contract entered into by him on 16-11-1951 was not with the first plaintiff but with the second plaintiff and that the first plaintiff has no right to bring the suit. Secondly the defendant also contended that the payment made by the first plaintiff in discharge of the decree in O.S. 180 of 1951 was a voluntary payment and as such the plaintiffs are not entitled to claim the amount. He also contended that even when the first plaintiff wanted to get himself impleaded as a party in the execution proceedings in the said suit he had objected to his being brought on record and, therefore, the plaintiff had no right to pay the decree amount nor claim back the said amount under these proceedings.