JUGRATH SINGH Vs. MIR GULAM HUSSAIN
MIR GULAM HUSSAIN
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(1.) If it had been necessary for us to consider the question as to whether the suit was barred by the proviso to Section 42 of the Specific Relief Act, we should have been prepared to hold that the suit was barred not on the ground taken by the learned Judge that consequential relief by way of injunction ought to have been asked fore but on the ground that the plaintiff ought to have claimed, in addition to the declaration which he asked for, payment to him by the 2nd defendant, of moneys in the hands of the 2nd defendant which but for the power of attorney would have been payable by the 2nd defendant and the 1 defendant. See Kombi v. Aundi 1892 I.L.R. 16 M. 333 s.c. 2 M.L.J. 279.
(2.) It seems, however, that after his suit was disposed of by the District Judge, the plaintiff elected to abandon his rights under the power of attorney and took out execution proceedings (see Exhibit 1) under his decree, In that state of things he is clearly disentitled for any relief on appeal in a suit based upon the power of attorney.
(3.) Appeal dismissed with costs.;
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