PARBHU DAYAL Vs. MURLI DHAR

JUDGEMENT

(1.) This is an appeal by the defendant arising out of a suit for specific performance of a contract. As the appeal raises a question of limitation both as to the plaintiff's suit and as to the plaintiff's appeal to the Court below and involves a question of res judicata as to the defendant's cross-objections in the Court below it will be necessary to set ""out the material facts and dates in some detail. The oontract, of which specific performance is sought, was made on 1 April 1915. By it the defendant-appellant Parbhu Dayal agreed to sell to his nephew the plaintiff Murli Dhar one-fourth of a house whenever the plaintiff should pay him the sum of Rs. 200. Shortly after this, the defendant mortgaged" the house to a third party and I am informed that the mortgagee has filed a suit on his mortgage and has obtained a decree. On 4 November 1921 the plaintiff filed the present suit for specific performance alleging that, on 21 September, he had tendered the sum of Rs. 200 to the defendant and asked him to carry out the contract and transfer the house to him and that the defendant had refused. The learned Munsif passed a decree in favour of the plaintiff on 18 March 1922 subject to his paying to the defendant, a sum of Rs. 300 and one-fourth of the decree obatained by the mortgagee. The sum of Rs. 300 inoluded the original Rc. 200 stipulated in the contract and a further sum of Rs. 100 on account of one-fourth share of the improvements to the house made by the defendant since the date of the contract. The plaintiff, on 29 March 1922, filed an application for review objecting to this condition. His application was dismissed on 6 May 1922.

(2.) In the meanwhile, on 24 April 1922, the defendant had appealed to the Distriot Judge. On 15 May 1922 he applied to the Court below to withdraw the appeal and the appeal was dismissed on his application. On the next day, that is, one day after the appeal had been dismissed, the plaintiff filed cross-objections under Order XLI, Rule 22. The Court below dismissed those objections on the ground that there was no appeal pending before it and, therefore, no cross- objection under Order XLI, Rule 22 could be preferred or entertained, and that the plaintiff's remedy was to file an appeal. On the same date, namely, the 18 May 1922 the plaintiff filed the appeal against the judgment in which the present second appeal has been brought. The defendant thereupon filed cross-objections raising the same points which he had raised in his appeal of 24 April. The Court below has dismissed those objections as barred by the rule of res judicata. It has allowed the plaintiff's appeal by deleting the condition requiring the plaintiff to pay one-fourth of the decree obtained by the mortgagee. The defendant has preferred a second appeal to this Court and has urged in support of it the following grounds:

(3.) 1. That the plaintiff's appeal to the Court below was time barred.