MOHENDRA GHOSHAL Vs. BHUBAN MARDANA

JUDGEMENT

(1.) The plaintiff is, by virtue of a transfer from the defendant No. 9, a co-sharer to the extent of l-12 in a mourasi jama with the defendants Nos. 1 to 8 and has brought this suit to recover from them certain sums of money claimed by him from them on account of sums deposited by him under Section 310A of the Civil Procedure Code together with costs. The decree in respect of which these sums were deposited was passed in a suit brought by one of several co-sharer landlords against defendants Nos. 1 to 8 alone for rent. In execution of that decree there was a sale and it purported to be of the entire holding notwithstanding the fact that the present plaintiff, one of the co-sharers, was not a party to the suit.

(2.) To have the sale set aside the present plaintiff applied to the Court under Section 310A and made the prescribed deposits. This was twice done successfully, and the result has been that the holding is in the possession of the plaintiff and the defendants Nos. 1 to 8, and the liability of these defendants in respect of rent has been discharged. The lower appellate Court, reversing the Munsif's order, has passed a decree in the plaintiffs favour and, this decree has been confirmed by by Mr. Justice Brett from whose judgment this appeal has been preferred. The plaintiff rests his case on Section 70 of the Contract Act, so it has to be seen whether it falls within the provision of that section. The determination of this question must largely depend on the findings of fact at which the lower appellate Court has arrived. It has been found by that Court that the plaintiff in making the two deposits did not intend to do so gratuitously, and that the defendants Nos. 1 to 8 enjoy the benefit thereof. And seeing that the plaintiff in making those deposits acted with the approval of the Court, what he did was done lawfully. The conditions of the Secs.are thus satisfied, and the only question that remains is to consider what the compensation is that the defendants Nos. 1 to 8 are bound to make. The lower appellate Court excluded the claim for recovery of the costs of the deposit and interest therein, and against this no appeal, has been preferred. In the circumstances of this case, I think there should also be excluded so much of the deposit as represents a sum equal to 5 per cent, of the purchase-money. On, the materials placed before us, it does not appear whether the amount specified in the proclamation of sale includes anything beyond the rent decreed and in any event the excess would be so trifling that I think it would not be profitable to direct any enquiry on that point. The result then is that I would vary the decree of the Subordinate Judge and direct that the plaintiff do recover from each of the several defendants Nos. 1 to 8 his proportionate share of the sum of Rs. 293-10-6, which is the sum deposited as representing the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered.

(3.) I desire to emphasize that my decision turns on the particular findings of fact of the lower appellate Court, by which we are bound. The terms of Section 70 are unquestionably wide, but applied with discretion they enable the Courts to do substantial justice in oases where it would be difficult to impute to the persons concerned relations actually created by contract. It is, however, especially incumbent on final Courts of J fact to be guarded and circumspect in their conclusions and not to countenance acts or payments that are merely officious. In this connection the caution enjoined in Venkata Vijaya Gopalaraju V/s. Timmayya Pantulu 22 M. 314 should be borne in mind. I do not suggest that the lower appellate Court in this case acted in disregard of this caution; on the contrary I think the finding have worked substantial justice. Doss, J.