(1.) This is an appeal against the decision of the Subordinate Judge, first Court, Barisal. The plaintiffs brought a suit to recover a sum of Rs. 6,500 with interest. They obtained decree for Rs. 2,000 with interest and have appealed against this decree. The defendant No. 1 has filed a cross-objection on the ground that the suit should have been dismissed as against him.
(2.) The plaintiff's case at the trial was as follows: Tarini Kumar Gupta and another purchased at auction-sale in execution of a decree certain properties belonging to the estate of Syed Obidulla Choudhuri. The defendant No. 2 is a brother of Syed Obidulla Choudhuri who is now deceased, and defendant No. 3 is the wife of defendant No. 2. After this purchase the auction- purchasers entered into a contract to sell those properties to the second and third defendants for Rs. 6,000. That contract was entered into on the 23 February, 1912 and at that time Rs. 1,000 was paid as earnest-money. The plaintiffs were the tenants of land in the property sold on temporary lease and they were anxious that the defendants Nos. 2 and 3 should obtain the property and grant them a permanent lease. The defendant No. 1 is the Sadar Naib of defendants Nos. 2 and 3. The plaintiffs entered into negotiations and arranged to pay the sum of Rs. 7,250 for a lease, the understanding being that defendants Nos. 2 and 3 should re- purchase the property and then grant them a patta. In view of this arrangement they paid, on the 15 February, 1914, corresponding to the 3 Falgun 1320, the sum of Rs. 6,500 to the first defendant, the understanding being that this money should be paid at once to the auction-purchasers. It transpired, however, that the auction-purchasers had already agreed to sell the property to other persons named Durga Charan Das and Kali Charan Das, and, as a matter of fact, a deed of sale in favour of these persons was executed on the 16 February, 1914. When the plaintiffs as certained that the money could not be paid to the auction- purchasers they agreed to its being retained in order that a suit might be brought for specific performance of the original contract of sale, and they then demanded a receipt from the first defendant which was granted by him and in that receipt he undertook to re-pay the money after the final disposal of the suit if it should fail.
(3.) The suit was brought and it was finally dismissed on appeal by the High Court on the 9th August, 1917. The plaintiffs, therefore, claimed this sum with interest at six per cent. par annum from that date. in their plaint they asked for this relief against the defendant No. 1 only. But they joined the second and third defendants as pro forma defendants apparently anticipating that defendant No. 1 might raise the defence that he acted as agent for the other defendants and then in the suit hoard in their presence it might be possible to obtain relief against them in the alternative. But the plaint, as framed, asked for no relief against defendants Nos. 2 and 3 except on the contingency that, should the Court hold on the evidence and the circumstances of the case Shut defendants Nos. 2 and 3 also ought to be liable, then a decree might be grant-ad against them.