NISAN SINGH Vs. RAMCHANDRA SAO

JUDGEMENT

(1.) THIS application must be dismissed. It arises out of a suit for recovery of money. The sum comprised two items out of which we are only concerned with one, namely, Rs. 62, which the opposite party claimed and has been found by the Court below to have advanced to the petitioner. The case of the opposite party was that this was the share contributed by him for the purchase of certain land in which he, the petitioner before me, and other parties were concerned as ijaradars and which was going to be sold in a Court-auction. The learned advocate for the petitioner has urged that the suit should not have been tried by the Small Cause Court at all because it comes either within Art. 41 or within Art, 15, Schedule 2, to that Act. Art. 41 deals with suits for contribution by a sharer in a joint property in respect of a payment made by him of money due from a co-sharer. The present was not a suit for contribution, but for recovery of money advanced. Nor was it a suit in respect of a payment made by the plaintiff of money due from the petitioner before me as a co-sharer. The payment made by the opposite party was made to the petitioner himself. On a plain reading of Art. 41 it seems clear that the suit was not within this article. Art. 15, the other article referred to by the learned advocate, deals with suits for the specific performance or rescission of a contract. In the present case the opposite party admittedly did not ask for the specific performance of any contract, but the learned advocate has contended that his claim for the recovery of the money advanced by him was based on the rescission of a contract and was, therefore, covered by the article. The claim for the recovery of money, however, arises rather out of the advance made by the plaintiff than out of what may be called the rescission of a contract; and it seems to me that the article contemplates cases where rescission of a contract is the relief asked for, while in the present case what the opposite party desired to obtain from the Court is not so much of the rescission of the contract as the recovery of the money advanced. The learned advocate has also urged that the suit was not maintainable in view of the provisions of Section 66, Civil P.C. Now, this section provides that: No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

(2.) WAS the present a suit of that character? The opposite party did not even seek to challenge the title of the petitioner to the property purchased by him at the Court-sale. He did undoubtedly say that the arrangement was that the property was to be purchased for all the ijaradars who contributed the purchase money, but he did not in this suit endeavour to assert his title to his share of the land. The suit was based on the footing that the petitioner before me had no longer any title to keep the money that had been advanced to him by the opposite party; and that clearly is not a suit within Section 66, Civil P.C., at all. The application is accordingly dismissed with costs. Hearing fee one gold mohur.