MONMOTHA NATH PAL Vs. GIRISH CHANDRA RAY

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in a suit for enforcement of a contract of sale. The case for the plaintiff is that he was the joint owner of Mehal Ruthpur which was said for arrears of revenue on the 26th March 1907. He alleges that he requested the defendant to watch the sale and to offer bids; the defendant agreed to do so, and to convoy the property to the plaintiff, should he be able to make the purchase. While the plaintiff was temporarily absent from the Collaborate, the property was put up to sales; the defendant offered bids in his own name and became the purchaser. Immediately on his return, the plaintiff asserts, he gave to the defendant Rs. 450, that is, one-fourth of the purchase-money, for deposit in the Collectorate; the sum was received by the defendant and was duly deposited. Later on, when the time arrived for deposit of the remainder of the purchase-money, the defendant proved false; he declined to accept the balance, got money from other persons and made the deposit in his own name. The plaintiff, therefore, brings this suit for specific performance of the alleged contract of sale. The Court of first instance found the facts in favour of the plaintiff and gave him a decree. Upon appeal by the defendant, the District Judge has dismissed the suit on the ground that it is barred under Section 36 of Act XI of 1859, read with Section 42 of the Specific Relief Act. In our opinion, this view cannot be supported.

(2.) Section 36 of Act XI of 1859 provides that any suit brought to oust the certified purchaser at a revenue sale on the ground that the purchase was made on behalf of another person, not the certified purchaser, or on behalf partly of himself and partly of another parson, though by agreement the name of the certified purchaser was used, shall be dismissed with costs. This clearly is no bar to the present action which has not been brought to oust the certified purchaser. The plaintiff seeks to enforce specific performance of the contract of sale. If he obtains a decree for specific performance, he will become the owner of the property and will then be entitled to maintain an action in ejectment against the defendant, We are not unmindful that the defendant has obtained a certificate from the Collectorate and has obtained delivery of possession. That, however, is of no avail to him, because the suit is not within the scope of Section 33. Fazal Rahaman v. Immam Ali 14 C. 583. As has been repeatedly held, Section 36 is a penal section, and must be construed strictly; it cannot be interpreted liberally so as to extend its application to cases neither covered by its terms nor, presumably, intended by the Legislature to fall within its scope. The Court will, undoubtedly, not put a wide construction upon that section, so as to assist the perpetration of fraud. Section 42 of the Specific Relief Act also is no bar to this suit. The plaintiff does not seek merely for a declaratory decree; he claims specific performance of a contract and, if he establishes his allegations, he is clearly entitled to relief.

(3.) The result is that this appeal is allowed, the decree of the District Judge set aside and the case remanded to him in order that the appeal preferred by the defendant may be tried out on the merits. The appellant is entitled to his costs of this Court.