VADREVU SURYANARAYANA Vs. KOCHERLAKOTA VENKATA SUBBARAO

JUDGEMENT

(1.) This appeal raises an interesting question of law concerning the scope of the prohibition contained in Section 66(1), Civil Procedure Code which runs thus:

(2.) The contesting parties are the appellant who was the first defendant in the Court below and the first respondent, the plaintiff. The suit was for specific performance of an agreement dated 12th March 1939 executed by the first defendant to convey the suit properties to the plaintiff whenever he chose to ask him to convey them without demanding any consideration. The averments in the plaint were extremely vague. After stating that the first defendant became the purchaser at a court auction held on 8th March 1939 in O. S. No. 9 of 1933 on the file of the court of the Subordinate Judge of Rajahmundry of a three fourth undivided share in two survey numbers in the village of Pulugurtha and that the first defendant subsequently filed a suit for partition and obtained the lands described in the plaint schedule towards the three-fourth share purchased, the plaint referred to the execution of the agreement abovementioned, the default on the part of the first defendant to carry out the agreement and averred that the plaintiff was entitled on the strength of the said agreement to demand specific performance of the contract by the execution of a proper instrument of conveyance to him and delivery of possession. The genuineness of this agreement marked as Ex. P 1 was questioned by the first defendant, but the finding of the learned Subordinate Judge who tried the suit that the agreement was genuine has not been challenged before us. The substantial plea in defence with which we are concerned at present is that based upon Section 66(1) of the Code. The learned Judge held that that provision, of law did not apply to the facts of the case and that the plaintiff was not precluded from maintaining this suit. The Subordinate Judge therefore gave a decree for specific performance with costs and mesne profits. Hence this appeal by the first defendant.

(3.) Before we deal with the decided cases cited to us by counsel on either side bearing on the construction of Section 66(1) of the Code, it is very necessary to ascertain the facts of the ease in so far as they can be gathered from the evidence adduced. One Bavaraju Venkataramanamurthi, a minor represented by his guardian obtained a decree inter alia against the plaintiff and his brother Yenkata Rao. In execution of this decree the three-fourth share to which the plaintiff and his brother were entitled in certain immovable property was brought to sale. At the court auction, the property was knocked down in favour of the first defendant for a sum of Rs. 425 on 8th March 1939. It is now common ground that the entire amount of the sale price and the money for expenses of the sale were wholly furnished by the plaintiff himself. According to the plaintiff he paid Rs. 150 in the first instance, evidently before the sale was held and Rs. 300 on the date of the agreement which was four days after the sale i.e., 12th March 1939. The agreement of that date is contained in a letter addressed by the first defendant in favour of the plaintiff in the following terms.