RAO BHIMSINGH Vs. SHERSINGH

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the High Court of Judicature at Nagpur dated 3 - 10 - 1939,.which affirmed the judgment and decree of the District Judge of Nimar dated 7 - 9 - 1936, which in turn affirmed the judgment and decree of the Subordinate Judge of Khandwa, dated 19 - 2 - 1936. .Reported in 27 AIR 1940 Nag. 278.

(2.) The appeal arises in execution proceedings in the following circumstances. In the year 1908, Rao Kishore Singh had instituted a suit against two widows to recover possession of an estate known as Bhamgarh - emindary. In that litigation Kishore Singh was claiming that the Estate was an impartible one and had descended upon him under the rule of primogeniture as the eldest male descendant of the last holder. His claim, if successful, would clearly operate for the benefit of an eldest son who might succeed him Kishore Singh obtained a decree in his favour from the trial Court, but the decree was reversed by the Court of the Judicial Commissioner of the Central Provinces. In order to raise money to enable him to prosecute an appeal to His Majesty in Council Kishore Singh on 11 - 11 - 1912, entered into an agreement with one Ramji Patel, under which Ramji Patel was to advance Rs. 5000, and if Kishore Singh succeeded in his appeal he was to sell a part of the said estate to Ramji Patel on the terms specified in satisfaction of the loan.

(3.) Kishore Singh succeeded in his appeal before the Judicial Committee of the Privy Council but refused to carry out his agreement with Ramji Patel. Accordingly, Ramji Patel instituted a suit in the Court of the District Judge of Nimar asking for specific performance of the said agreement or in the alternative an order for repayment of the amount advanced with interest. That suit also ultimately went in appeal to His Majesty in Council and the Judicial Committee held that Ramji Patel was entitled to specific performance of the agreement of 11 - 11 - 1912, but that compensation in money would afford adequate relief. Accordingly by Order in Council dated 10 - 5 - 1929, their Lordships reported to His Majesty that a decree should be made in favour of the appellant for Rs. 20,000 with interest thereon at the rate of 6 per cent per annum until realisation and that there ought to be paid to the appellant certain costs of the appeal.