HARILAL DALSUKHRAM SAHEBA Vs. MULCHAND ASHARAM

JUDGEMENT

(1.) The facts underlying this letters patent appeal are set out in 30 Bom. L.R. 1149, a decision to which I was a party, and which was made on July 3, 1928.

(2.) The respondent had sold the appellant survey No. 108, pot Nos. (1) and (2) of Usmanpur, in the south Dascroi Taluka of the Ahmedabad District, for Rs. 19,000. The title conveyed by the respondent was clouded and litigation ensued between the parties to the transaction. The original Court refused to set the sale aside, but put the parties to terms, the principal ones being that the respondent should return Rs. 1,000 of the price, and execute a conveyance in appellant's favour containing certain indemnity clauses, the conveyance to be executed within two months of the decree, which was made on October 24, 1924. Execution proceedings under this decree were initiated on December 2, 1924. While they were still pending and after Rs. 1,000 and the sum due for costs had been paid into Court and received by the appellant, as to the Rs. 1,000 under protest, an appeal was filed in this Court. The proceedings for execution were not stayed pending appeal, though a rule was issued by this Court, but in fact they were stayed, probably under a misapprehension by the original Court. The original Court's decree was virtually confirmed by this Court, subject to two modifications, the first being making the covenant for transfer of the indemnity specified in Clause 2 (a) of para. 15 (a) of the Subordinate Judge's judgment cover an indemnity against the plaintiff having to pay the amount with any interest thereon, and altering the time fixed for performance to within two months of the High Court's judgment.

(3.) Nothing happened in the Court below till September 24, 1928, when the respondent put in an application now Exhibit 12. This document stated that the original Court's decree had been confirmed, and that the pending execution proceedings should therefore be further proceeded with. It also sought an amendment of the prayer clause, being an addition of the claim for costs in the High Court,