MADHORAO Vs. RAGHUNATH

JUDGEMENT

(1.) 1. A 4-anna share in mauza Marda, which had been mortgaged to the plaintiffs, was to be sold in execution of a simple money decree. The plaintiffs were anxious to buy it, and their servant Bakaram, defendant 1, bought it at the Court auction on their behalf. He deposited Rs. 512-8-0, which was one-fourth of the sale price, on 9th August 1928, which sum had been supplied to him for this purpose by the plaintiffs. Shortly afterwards Bakaram left the plaintiffs' service and failed to fulfil the purchase, and on 7th November 1928 the sum of Rs. 512 8-0 was withdrawn by Madhorao, defendant 2, as the agent of Bakaram. The lower Courts have held that Madhorao retained this money and that the withdrawal was made by Bakaram and Madhorao in collusion in order to defraud the plaintiffs of their money. There is a clear allegation in the pleadings that there was collusion between Bakaram and Madhorao in order to deprive the plaintiffs of their money, and the above findings of fact cannot now be challenged. The only question is whether Madhorao is liable to the plaintiffs on these facts.

(2.) WHERE as the result of a conspiracy between two persons a third person is deprived of money to which he is entitled, I have no doubt that he has a cause of action against both the conspirators: see Clerk and Lindsell on Torts, at p. 658, Edn. 7. The question whether Madhorao was a sub-agent of the plaintiffs and whether there was privity of contract between him and the plaintiffs appears to me to be entirely immaterial. The plaintiffs have a clear case in tort against both defendants. The appeal therefore fails and is dismissed with costs.