CHOUDHARY HARIRAM Vs. POORANSINGH

JUDGEMENT

(1.) THE facts of the case are very simple. The appellants had agreed to sell -/12/share in the village for a consideration of Rs. 2100/-, out of which Rs. 1900/remained to be paid. As there was no sale, a suit for specific performance was filed by the respondent. That Suit (Civil Suit No. 31-A of 1949) was decreed. It was ordered that the plaintiff should deposit Rs. 1900/- and on the deposit being made, the defendants should execute the sale deed and deliver possession of the property agreed to be gold. The amount was deposited by the plaintiff-respondent on 22-12-1949. As the appellants did not execute, the sale deed; the Court executed it and registered it on 30-11-1950. In the meantime, another suit was filed by the sons of the appellants, which was Civil Suit No. 62-A of 1949. In that suit, a declaration was sought by the sons of the appellants that the appellants had no right to sell -/9/6 share of the village. That suit was decreed. By that time, on 31-3-1951, the M. P. Abolition of Proprietary Bights Act came into force and the property in the village share vested in the State. The result was that the respondent could not get possession of the property.

(2.) AN application was, therefore, filed by the respondent on 25-2-1954 for refund of the amount of Rs. 1900/ -. This application was dismissed in default on 24-61954. Another application was filed on 27-4-1957 and on 19-9-1957, this application was dismissed on merits. It was held that the respondent could not file an application under Section 144, Civil Procedure Code, and the Court had no power to refund the amount. In appeal, filed by the respondent, the appellate court held that the application may be treated as an application under Section 144, Civil procedure Code. It amounted to an application for restitution and the respondent was entitled to the refund of Rs. 1900/-Against this order, the present appeal has been filed.

(3.) THE first point that has been argued is that no application under Section 144, civil procedure Code, would lie. Counsel for the appellants relied on Narayan v. Mst. Radhabai, ILR (1937) Nag 153 : (AIR 1937 Nag 151) in which Bose, J. , (as he then was) observed as follows: