MANGAT RAI Vs. DULI CHAND

JUDGEMENT

(1.) This is a first appeal from the judgment of the Additional Subordinate Judge of Meerut. The plaintiffs brought a suit for declaration that they were the owners of certain property and that the defendants had no right to it. The lower Court dismissed the suit. The plaintiffs appeal. The admitted facts are as follows: One B. Duli Chand, a vakil, together with his two infant sons, were the mortgagees of the land in suit. On 12 March 1927, B. Duli Chand obtained a decree for sale of the mortgaged property for the sum of Rs. 5,000. The property in due course was put up to auction and was purchased by Duli Chand for Rupees 1,300. On 5th September 1927, the sale was set aside at the instance of the judgment-debtor by the Subordinate Judge. On the 7 of the same month the judgment-debtor sold this property together with other property to the plaintiffs for the sum of Rs. 13,000. On 1 November 1927, B. Duli Chand filed an appeal in the High Court against the order setting aside the sale, in that appeal the plaintiffs were not parties. On 4 November 1927 the plaintiffs, who had meanwhile purchased the property from the judgment-debtor, deposited in Court Rs. 5,529 for the discharge of the debt due to B. Duli Chand. The execution case was thereupon struck off as satisfied. On 1 March 1928 B. Duli Chand and his two sons applied to the Court to withdraw the deposit paid in by the plaintiffs and on 21 May the money was withdrawn. On 6 February 1929, the appeal to the High Court against setting aside the sale was heard and decided in favour of B. Duli Chand. It is to be noted that when this appeal was heard by the High Court the Bench which heard it, of which one of us was a member, was not informed by the appellants of the deposit of the amount due to the appellants in Court or that the said sum had been taken out in satisfaction. B. Duli Chand, after his success in the High Court, claimed the property as his, and this suit was thereupon filed by the plaintiffs.

(2.) It is argued by Sir Tej Bahadur Sapru on behalf of the appellants that the defendants are now estopped from denying the plaintiffs proprietary rights in respect of the property in suit; that when they took their money out of Court they must be held to have abandoned their other remedy of appeal against the order setting aside the sale and that their election in that matter is now binding upon them and they cannot fall back upon their other remedy. It is urged by Sir Tej Bahadur Sapru that the present plaintiffs were not represented in the appeal to the High Court; that the judgment-debtor who was represented having sold his property to the plaintiffs had thereafter no real interest in defending the appeal, and that if the High Court had been informed that the appellants before it then had taken the money out of Court, the appeal would undoubtedly have been dismissed. He further says that it was the duty of the appellants in that case to lay all the facts before the Court and that they failed in that duty.

(3.) Dr. Katju who appears for the respondents, on the other hand, relies on Section 52, T. P. Act. He contends that the plaintiffs when they bought the property took it subject to the law of lis pendens and that they are bound by the decision of the Court below. He further argues that Section 11, Civil P.C. applies, that the point now relied upon that the appellants in that case took the money out of Court ought to have been pleaded in the case, and that therefore the matter is res judicata. He contends that the doctrine of election does not apply, and relies upon a decision of a Bench of this Court in Mt. Qudratunnissa Bibi V/s. Abdul Rashid . This was a pre-emption case and it was there held that where the pre- emptor in execution of his decree paid the purchase price of the property into Court and the vendee took it out, the vendee was not estopped from prosecuting his appeal against the decision of the lower Court.