Decided on December 08,1953



Mohapatra, J. - (1.) This is an appeal against the judgment dated 20-7-1949 of Sri S. K. Mohapatra, Additional Subordinate Judge of Puri, confirming the decree dated 8-9-1948 of Sri N. K. Das, Munsif of Puri, arising out of a suit brought by the plaintiffs for specific performance of contract alleged to have been entered into between the plaintiffs and the original defendant 1 (Jagabandhu Mohapatra) as manager of the Hindu joint family consisting of himself, and his minor sons and nepnews (defendants 2 to 8). Jagabandhu and Dinabandhu were two brothers. Dinabandhu predeceased Jagabandhu in a state of jointness leaving his widow Suryamani and his two minor sons (defendants 7 and 8). The original defendants 2 to 6 are the sons of Jagabandhu who were minors at the first date of the contract, that is, 20-6-1942 but defendant 2 attained majority in the meantime and defendant 1 (Jagabandhu) died during the pendency of the suit. The plaintiffs' case is that the said Jagabandhu executed an agreement in favour of the plaintiffs on 20-6-1942 on a plain paper and received a sum of Rs. 50/- as advance of the consideration for the sale of a homestead land with a house thereon, the area of the homestead being .055 Situate in the town of Puri. The consideration was settled at Rs. 800/-. On 30-9-1942 Jagaoandnu purchased stamps worth Rs. 12/- and handed over tne same to the plaintiffs. On 18-6-1945 both defendant 1 and his son defendant 2 (who had by then attained, majority) jointly executed a sale-deed in pursuance of the aforesaid contract in favour of the plaintiffs. The sale-deed was executed by defendant 1 on his own behalf and on behalf of his minor sons and nephews. The sale-deed in favour of the plaintiffs however could not be registered as the plaintiffs fell ill and on account of other reasons. Thereafter Suryamani, as mother guardian of defendants 7 and 8, executed a sale-deed in favour of defendant 9 on 5-1-1946 for a consideration of Rs. 1000/- in respect of half of the property and defendant 1 for self and as guardian of his minor sons and defendant 2 both executed a sale-deed in favour of defendant 10 on 23-1-1946 for a consideration of Rs. 1100/- in respect of the other half of the property. The plaintiffs' have therefore brought the suit, for specific performance of contract on the allegation that the Kabalas in favour of defendants 9 and 10 are bogus transactions, or in any event they (defendants 9 and 10) having notice of previous contract the plaintiffs are entitled to a decree for specific performance against all the defendants.
(2.) The defence taken was that the contract for sale in favour of the plaintiffs was not bona fide and genuine and did not take place prior to-the Kabalas in favour of defendants 9 and 10.
(3.) Before the hearing of the appeal commenced, a preliminary point was taken on behalf of the respondents by reference to previous order passed by this Court on 12-9-1950 that the' present appeal could not proceed. The order dated 12-9-1950 is as follows: "We direct that the Deputy Registrar be appointed the guardian of the minors. The plaintiffs must pay a sum of Rs. 20/12/- as guardian cost within two weeks hence, failing, which the appeal shall stand dismissed as against minor respondents 2 to 6 without further reference to a Bench." In fact the plaintiffs failed to comply with the present order and a subsequent order was passed by the Deputy Registrar on 27-9-1950 to the effect that "Guardian's cost for minor respondents 2 to 6 not having been deposited in time, appeal against the said minor respondents stands dismissed in pursuance of Order No. 8, dated 12-9-1950." Respondents 2 to 6 are minors and were represented in the lower Court by a pleader guardian ad litem. The pleader guardian having intimated in an application by post to the Court on 22-6-1950 that he might be excused from representing the minors in the High Court, the Registrar passed an order on 28-8-1950, at the request of the appellants for time to take necessary steps for change of guardian for the minor respondents 2 to 6, that failing compliance of necessary steps, that, is, Court guardian may be appointed for the said minors on the appellants depositing Rs. 20/12/-as guardian's cost--vide office note, D/- 19-8-1950 --within ten days the case should be placed before the Bench for orders. Accordingly the case was placed before the Bench on 12-9-1950 and order No. 8, dated 12-9-1950, as quoted above, was passed. The respondents' contention is that the appeal having been dismissed as against respondents 2 to 6 and as the case arises out of a suit for specific performance of contract, the entire appeal must fail, or else it will lead to inconsistent decrees.;

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