R MUNISWANI GOUNDAR Vs. B M SHAMANNA GOUDA

JUDGEMENT

(1.) This is an appeal against the decree and judgment of the Court of the District Judge of North Arcot in O. S. No. 7 of 1945, a suit for specific performance of a contract of sale. The facts are rattier complicated, but it is necessary to give a resume for a correct appreciation of the contentious of the parties. One B. S. Muniswami Appa filed O. S. No. 125 of 1920 on the file of the District Court of C. and M. Station, Bangalore, to enforce his money claims against one China Muniswami Goundar and obtained a decree therein. The suit properties were brought to sale in execution of the decree and the decree-holder himself purchased the properties and took possession on 6th May 1924. Manioka Goundar, the son of China Muniswami Goundar preferred a claim in regard to his share in the suit properties. As the claim was allowed, Muniswami Appa filed O. S. No. 12 of 1924 on the file of the Court of the Subordinate Judge of Vellore for a declaration that he was entitled to attach and bring the plaint properties to sale in execution of his decree. To that suit Manioka Goundar and China Muniswami Goundar were made parties. The suit was decreed. Meanwhile one A. P. Varadaraja Mudaliar obtained a decree against Manioka Goundar and China Muniswami Goundar in C. S. No. 834 of 1922. In execution of that decree, the suit properties were brought to sale in the year 1927. Defendants 1 and 2 who are the legal representatives of Muniswamiappa preferred a claim petition but that was dismissed and one Krishnamurthi Aiyar purchased the properties in court sale. They filed O. S. No. 68 of 1929 on the file of the Court of the Subordinate Judge of Vallore for setting aside the claim order. The decree-holder Varadaraja Mudaliar, the auction-purchaser Krishnamurthi Aiyar, the judgment-debtors, China Muniswami Goundar and, as Manioka Goundar died, his son Subramania Goundar were made parties. The Subordinate Judge of Vellore set aside the claim order and upheld the title of defendants 1 and 2 Exhibit P-4 is the said judgment dated 27th October 1930. The auction purchaser preferred an appeal A. S. No. 34 of 1931 on the file of the Court of the District Judge of North Arcot. The appeal was disposed of on 26th January 1933 and the decree of the Subordinate Judge was set aside. Pending the appeal, on 17th December 1931, there was a partition between defendants 1 and 2 whereunder the suit properties fell to the share of defendant 1. On 26th April 1932, i. e., pending A. S. No. 34 of 1931, defendant 1 and the plaintiff entered into an agreement dated 26th April 1932. Under that agreement, defendant 1 agreed to sell she suit properties to the plaintiff for a sum of Rs. 5500. The vendor received Rs. (sic) in the manner mentioned in that document and he agreed to take the balance of Rs. 2400 before the Sub-Registrar upon executing the sale deed on the disposal of the suit pending at that time. As the appeal was allowed, Krishnamurthi Aiyar took possession of the property on 30th November 1933 in execution of his decree after removal of the obstruction by the plaintiff. Defendants 1 and 2 preferred an appeal to the High Court against the decree in A. S. No. 34 of 1931, being S. A. No. 466 of 1933. As the title of defendant 1 to suit property was negatived, the plaintiff filed O. S. No. 40 of 1935 for recovery of the amount advanced by him under EX. P. 5. Defendant 1 contended that the suit was premature as S. A. No. 466 of 1933 was pending. The suit was dismissed on the ground that it was premature. S. A. No. 466 of 1938 was allowed on 4th April 1938 and the decree in O. S. No. 68 of 1929 was restored. The result is that the title of defendant 1 was affirmed. Defendant 1 thereupon filed a petition dated 2lst October 1940 for restitution of the properties from Krishnamurthi Aiyar but that was dismissed as defendant 3, the mother of Subramania Goundar, obstructed. Defendants 1 and 2 filed E. A. No. 105 of 1941 against China Muniswami, defendant 3 and others for removal of obstruction, but it was dismissed. They filed O. S. No. 61 of 1942 on 23rd March 1942 on the file of the Court of the Sub-ordinate Judge of Vellore for setting aside that order. To that suit China Muniswami Goundar and defendant 3, i. e., the mother of Subramania Goundar were made parties. Pending the suit, China Muniswami Goundar died and defendant 4 was added as one of the legal representatives. Before the suit was disposed of, on 14th September 1943, the plaintiff applied under Order 1, Rule 10, Civil P. C., to be made a party to the suit and the main allegation made in the affidavit filed in support of the petition was that the parties to that suit were colluding to defraud his rights. Notice of that petition was served on the advocate for defendant 1 and defendant 3 on 14th September 1943. That petition was returned for complying with certain requirements. Meanwhile, the parties to the suit rushed through a compromise and a compromise decree was passed on 20th September 1943 whereunder defendants 1 and 2 after receiving a sum of Rs. 5000 gave up all their rights in the suit properties. R. Muniswami Goundar (the plaintiff) filed the present suit on 18th August 1944 for specific) performance of the agreement embodied in Ex. P-5 dated 26th April 1932.

(2.) The defendant contended inter alia that the suit was barred by limitation, that the agreement was affected by the principle of his pendens, that the plaintiff having elected to file a suit for the refund of the purchase money was precluded from filing the suit for specific performance and that defendant 3 acquired a right by adverse possession. The learned District Judge held on all the aforesaid points against the plaintiff and dismissed the suit. The plaintiff prefers the above appeal.

(3.) The main question in the appeal is whether the suit to enforce the agreement EX. P-5 is barred by limitation. The learned counsel for the appellant as well as the respondents agreed that Article 113, Limitation Act, applied. But counsel for the appellant argued that limitation would start only from the date when he had notice that the performance was refused, i. e. the compromise decree in O. S. No. 61 of 1942 dated 20th September 1943, whereas the learned counsel for the respondent contended that limitation would start to run from the date of the agreement itself, i. e., 26th April 1932. Exhibit P-5 is the agreement entered into between the parties on 26th April 1932, The relevant portion of the agreement reads as follows: