SOMASUNDARAM CHETTIAR Vs. CHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the respondent for specific performance of an agreement to assign the decree in O. S. No. 208 of 1932 on the file of the Court of the Subordinate Judge of Devakottai obtained by the appellant as a result of the decision of this Court in A. s. no. 237 of 1934. The agree -ment was dated 17 -12 -1942 and there is now no dispute that it was executed by the defendant who had fall knowledge of what he was doing. In his evidence he admitted that though he was not originally agreeable to execute the deed of assignment of the decree, he eventually agreed to do to and executed the agreement, Ex. P -2. There was an attempt in the Court below to establish a case of coercion which vitiated the agreement, but the attempt altogether failed. On a perusal of the evidence of the defendant himself and the other three witnesses examined on his behalf, there is no doubt left in our minds that the agreement was duly executed by the defendant and was intended to be acted upon. The defendant's case was that the sanction was brought about at the instance of two of the judgment -debtors in O. S. No. 208 of 1932 and the plaintiff was merely a name lender. Very probably it was so; but we fail to see how that fact can have any material bearing on the rights and liabilities of the parties to this suit.

(2.) THE defendant acknowledged in P -2, receipt of RS. 13,100 the consideration for the assignment of the decree. But his case as developed in his evidence was that out of this amount only Rs. 11,100 had been received by him from P. W. 1, Raman Chettiar. The burden lay heavily on the defendant to establish his case in view of the express acknowledgment in EX -P. 2. The amount of Rs. 11,100 was alle -ged to have been paid in three instalments by cheques but no attempt was made to have the cheques produced nor were the accounts of the defendant produced to show that the amounts were received as alleged towards the agreement to assign the decree and not in respect of dealings between the defendant and Raman Chettiar, In the absence of reliable evidence in proof of the defendant's case, it must be held that the full amount of consideration recited in Ex, P -2, wag paid to the defendant. There is really no defence to the suit for specific performance which was rightly decreed by the Court below.

(3.) MR . V. Kamaswami Aiyar, the learned advocate for the respondent, wanted that the decree of the lower Court may be varied by awarding him the alternative relief claimed by him. viz., the refund of the sum of Rs. 13,100 with interest and Rs. 2000 as damages. It was quite open to the respondent to have abandoned his claim for specific performance and to have prayed for the alternative relief only before the Court below. He certainly had the option of choosing one of the alternative claims. But he was evidently quite satisfied with pressing for the relief of specific performance and he did obtain that relief. Till his learned counsel began his argument before us there was no mention that the respondent wanted the alternative relief in lieu of specific performance. No authority was cited to us that the appellate Court is bound to accede to this demand by the plaintiff even after the decree of the lower Court. In the absence of any indication till the time of the arguments that the plaintiff bad changed his mind and had decided to choose the alternative relief other than what was granted to him by the Court below, we are not inclined to grant this request.