RAM RICHCHA PRASAD TEWARI Vs. RAGHUNATH PRASAD TEWARI

JUDGEMENT

(1.) THIS appeal arises under the following circumstances. Certain property which was subject to a mortgage was sold. The vendor left in the hands of the vendee a portion of the consideration which was to go in discharge of a mortgage. A suit was brought by the plaintiffs for pre-emption of the property sold and a decree was obtained. Very unfortunately the decree directed that the plaintiffs should pay into Court as a condition precedent to getting the property the whole of the purchase-money. The plaintiff ought not to have been asked to pay the entire price. He ought to have been only directed to pay in the amount of cash which the vendee had paid to the vendor, retaining in his hands the balance of the purchase- money for payment of the mortgagee just in the same way as the original vendee was to retain part of the purchase-money. The plaintiffs paid into Court the full purchase-money and got possession of the property. The defendants predecessors drew out of Court the full amount deposited by the plaintiffs but never discharged the mortgage or any part of it. Later on a suit was brought by the mortgagee and the plaintiffs in order to save the property had to pay the mortgage money. They then instituted the present suit to recover from the defendants the money left in the hands of the vendee for payment to the mortgagee together with interest. The Court of first instance dismissed the suit. The lower Appellate Court has decreed the suit. Hence the present appeal by the defendants. We should have been very glad to have seen our way to uphold the decree of the Court below, because there can be no doubt that the defendants have kept in their hands money which clearly they should have paid to the mortgagee. But the question is upon what basis can the plaintiffs succeed. The defendants or their predecessors-in-title never entered into any contract with the present plaintiffs to pay the money to the mortgagee. Even the mortgagee himself could not have recovered this money from the defendants. The obligation of the defendants predecessor-in-title was one based on his contract with the original vendor. The whole trouble arose from the plaintiffs not taking care that the pre-emption decree was drawn up in proper form directing that they should only pay the amount which the defendants predecessor-in-title had paid to his vendor. We consider that under the circumstances of the present case there was no contractual liability between the present plaintiffs and the defendants. Nor was there that liability which the law implies under certain circumstances, for instance where one man is compelled to pay money for which another is legally liable. Section 69, on which the Court below relies, clearly is not applicable to the circumstances of the present case. We must allow the appeal, set aside the decree of the Court below and restore the decree of the Court of first instance, with this modification that we direct the parties to pay their own costs throughout.