DALCHAND THAKURDAS Vs. GANPAT

JUDGEMENT

(1.) THE appellant took a lease of the house in suit from defendant 1 Ganpat on 9th September 1920, for a period of 10 years. Thereafter ,on the 28th September 1920, Ganpat mortgaged it to defendant 2 Hydar Ali and agreed to sell the same to him for Rs. 5,000. The very next day he also agreed to sell the same to Dalchand and received a payment of a part of the price, Rs. 500. Subsequently on the 2nd October 1920, he executed a sale-deed in Dalchand's favour and received Rs. 960 at the registration of the sale-deed which took place on 4th October 1920.

(2.) HYDAR Ali, on the strength of the transaction entered into by him, sued defendant Ganpat and Dalchand for specific performance and possession of the house. That suit was compromised on the 11th April 1921. and it was agreed that Dalchand should deliver possession on the 9th September 1930, to Hydar Ali. It was also agreed that Hydar Ali should withhold payment of the balance of the price to Ganpat until the appellant Dalchand had instituted a suit for the recovery of the amount due to him which the latter agreed to institute within a fortnight.

(3.) THE personal contract set up by the plaintiff with Hydar Ali was one for withholding payment for a fortnight. It was not for a total abstention from payment to Ganpat or for payment over to plaintiff. The promise was duly fulfilled by Hydar Ali, as will be seen from the date of the payment which is a few days after the lapse of a fortnight from the date of the compromise. The Courts below were, therefore, right in holding that plaintiff had no cause of action to sue the defendant Hydar Ali for the amount. The plaintiff's claim was decreed against defendant Ganpat.