HURMAT ALI Vs. MATLIB ALI

JUDGEMENT

(1.) THIS appeal arises out of a proceeding under S. 144 of the Civil P.C. Hurmat Ali (appellant) applied for restitution of the land which he had been made to deliver to Matlib Ali under the orders of the Court while his own appeal was pending in the High Court. The land in question was sold by Matlib Ali to Hurmat Ali. The sale was subject to a condition for reconveyance. Matlib Ali instituted a suit for specific performance of the condition relating to reconveyance. The suit was dismissed by the trial Court, In appeal it was decreed by the learned Subordinate Judge. Hurmat Ali appealed to this Court. The appeal succeeded. The decree passed by the learned Subordinate Judge was reversed and that of the trial Court restored. The result was that by the final decree of the High Court the suit stood dismissed.

(2.) WHILE Hurmat's appeal was pending in this Court, Matlib sought execution of the decree passed by the learned Subordinate Judge. He got a kabala executed in his favour by the Executing Court in the course of the execution proceeding on depositing a sum of Rs. 150/ - as the price of the land. This amount was withdrawn by Hurmat, who has claimed restitution of the land in this case by reason of the reversal of the decree passed by the Court of the Subordinate Judge.

(3.) IT may be noticed that no evidence was led by either party in the present proceeding. The learned Munsiff recorded no finding on the question whether the land had been transferred to third parties with the knowledge of Hurmat, appellant. The learned Additional District Judge, therefore, had no basis for the finding that the transfer of the disputed land to third parties was with the knowledge of Hurmat, or that the transferees were bona fide purchasers for value without notice. If he was of the view that this question was necessary for the decision of the case, he should have remanded the case for a finding on this point. In the absence of any evidence, all We have is that Hurmat, appellant, did withdraw the amount which was deposited by Matlib, respondent, in the course of the execution proceeding before the disposal of Hurmat's appeal in order to enable him to get a kabala from the Court for the land in question. This fact by itself would not create any estoppel against the appellant so far as his claim for restitution is concerned. Matlib executed the decree which he obtained from the Court of the learned Subordinate Judge during the pendency of Hurmat's appeal. He got the kabala. He also got possession in pursuance of that decree. The money that he deposited was thus withdrawn by Hurmat under the orders of the Court, but at a time when his appeal was pending. If this withdrawal of the amount deposited by Matlib is enough to estop the appellant from claiming restitution, the objection should have been taken when the appeal was heard by this Court. At that stage it was not urged on behalf of Matlib that having accepted the money, it was not open to Hurmat to take any steps for getting back the land also. This plea was not raised and therefore the decree passed by the learned Subordinate Judge was reversed by this Court.