MAHADEO SAHU Vs. MAHIPAL RAI

JUDGEMENT

(1.) This appeal arises under somewhat peculiar circumstances. Property was sold by Amrit Prasad Rai and Mahadeo Rai to the defendant-appellant, the purchase- money being Rs. 925 out of which Rs. 435 were left in the hands of the vendee for the purpose of discharge of a mortgage on other property of the vendors. The plaintiffs in the present suit brought a suit for pre-emption which resulted in a decree in their favour conditional on their paying into Court the sum of Rs. 925. The vendors apparently took no exception to the terms of this decree, though they were parties to the suit. The consequence was that the vendees-defendants in the pre-emption suit drew out of Court the whole Rs. 925, although they had not, as a matter of fact, paid the mortgagee. The mortgagee then brought a suit against the vendors and obtained a decree, which the vendors satisfied in order to save the property. The vendors then brought a suit purporting to be under the provisions of Section 55, Clause 4 (6), of the Transfer of Property Act, making both the vendee and the pre-emptors parties to the suit. The vendee appeared and defended the suit. The pre-emptors did not appear and the result was that a decree for sale of the pre-empted property was made to enforce the alleged statutory-charge for the unpaid purchase-money. The pre-emptors then paid the amount of the decree in order to save the property and instituted the present suit to receive the amount from the vendee in the pre-emption suit.

(2.) The question is whether under these circumstances the defendant is liable.

(3.) The Court of first instance granted a decree which was affirmed by the lower Appellate Court.