GAURI DUTT MARWARI Vs. DKDOWRING

JUDGEMENT

(1.) Appeal No. 1 of 1929 arises out of a title Suit No. 65 of 1926, brought by Mrs. Dowring, widow of Revd. C. Dowring, and two daughters of hers, Mrs. Howatson and Mrs. Williams for declaration of title to and confirmation of possession of a bungalow in Muzaffarpur purchased by Mr. Dowring in the name and with the money of Mrs. Howatson under a deed of sale executed by Baijnath Prasad Singh, defendant, second party, on May 24, 1923. Gauri Dutt Marwari, defendant first party, purchased this bungalow at a Court sale on December 1, 1925, in execution of a compromise decree of October 5, 1923, obtained by him against Baijnath in money Suit No. 430 of 1922. Plaintiffs case was that by reason of certain arrangements between the parties, to which reference will be made latter, Gauri Dutt had no right to proceed against the bungalow in execution and they sought to save their title, or rather the title of Mrs. Howatson, against Gauri Dutt with his execution purchase. The suit was decreed with costs for which Gauri Dutt and Baijnath were made separately liable. Gauri Dutt therefore appeals, and Baijnath has filed a cross objection on the ground that no costs should have been awarded against him.

(2.) Appeal No. 14 of 1950 arises out of a Suit No. 39, brought three months earlier fin May 1926) by Baijnath and his descendants against Gauri Dutt, Mrs. Howatson and Jugal Kishore Prasad Singh (and a minor brother of his) in respect of the purchase of several items of property by Jugal Kishore On December 4, 1925, at a Court sale brought about by Gauri Dutt in execution of his compromise decree against Baijnath in the same money suit of 1922. The plaint as it stood originally, prayed for the setting aside of the execution sale, and in the alternative for the recovery of Rs. 5,000 as damages either from Mrs. Howatson or from Gauri Dutt. The claim was based on the allegations that Gauri Dutt had been previously paid Rs. 0,000 for the bungalow referred to in the other appeal and had therefore no right to take out execution for the entire decretal amount as he did, that the sale processes were fraudulently caused to be served surreptitiously and that thus the properties which the plaintiffs valued at Rs. 5,000 were lost to them. The allegation that Rs. 0,000 had been paid to Gauri Dutt was rested on information given by Mr. Howatson, and para. 18 of the plaint put the alternative case that if in fact she did not pay the money as she was required by the sale-deed regarding the bungalow to do, she was liable to make good the loss of Rs. 5,000 sustained by them in consequence of her omission. More than a year after the institution of the suit, the plaintiffs entered into a compromise with the auction-purchaser and agreed that the execution sale of December 4, 1925, was valid and proper. Three months afterwards they obtained an amendment of the plaint by the deletion of the reliefs originally sought against the auction-purchaser.

(3.) What was thus left of the suit was the prayer for damages either from Gauri Dutt or from Mrs. Howatson. The lower Court came to the conclusion that the whole cause of action had disappeared by reason of the plaintiff's compromise with the auction-purchaser, and accordingly dismissed the suit. Baijnath and his family accordingly appeal. It will be convenient to refer to the plaintiffs of Suit No. 39 under the name of Baijnath alone, to Gauri Dutt as the appellant, and to the plaintiffs in Suit No. 65 as the plaintiff. The pleadings in the two cases are by no means models of lucidity, and Gauri Dutt's written statements in particular are of an argumentative and involved character. The issues of fact between the parties are however clear. As soon as he brought his money Suit No. 430 of 1922, Gauri Dutt applied for and obtained attachment before judgment in respect of the properties that he ultimately brought to sale in the execution proceedings of December 1925. It appears that negotiations for a settlement began almost immediately. Baijnath was heavily in debt and Gauri Dutt agreed to take Rs. 8,000 in satisfaction of his claim. Mr. Dowring, an old missionary, had been pensioned off by the American Mission, and having no house to live in, was helped with money by Mrs. Howatson to buy Baijnath's bungalow. The price was settled at Rs. 6,500, out of which Rs. 6,000 was to remain in deposit with Mr. Do wring to be paid to Gauri Dutt when he released the bungalow from the attachment.