GOOROO DAS PYNE Vs. RAM NARAIN SAHOO

JUDGEMENT

(1.) THEIR Lordships are of opinion that the judgment of the High Court ought to be affirmed.

(2.) IT appears that, as far back as March, 1865, Modhoosoodun, who was the brother of the present Appellant, had taken some 1260 logs of timber which belonged to the Plaintiffs, and converted them to his own use. Soon after that a suit, No. 10 of 1865, was brought by the Plaintiffs against Modhoosoodun and another for the conversion of the timber, and a decree was obtained on the 30th of March, 1868, for the sum of 25,200 rupees, in favour of the Plaintiffs. That decision was appealed from to the High Court, which in January, 1869, reversed the decree. An appeal was preferred to Her Majesty in Council, and on the 12th of December, 1873, the decision of the High Court was reversed, and the decree of the first Court established, namely, that the Plaintiffs were to recover a sum of Rs. 25,200 from Modhoosoodun and the other Defendant. In the meanwhile Modhoosoodun had died, and the decree in the Privy Council was against his widow, as his representative, that the Rs. 25,200 should be recovered from her. Subsequently an application was made to the District Court of Midnapore to execute the decree, and certain property was attached which the present Appellant claimed as his separate property. Only a very small portion of it was held liable to the decree, and the rest was ordered to be given up. Upon that the present suit was instituted for the purpose of trying whether the Plaintiffs had not a right to execute their decree against the property mentioned in the attachment, and which had been ordered to be given up. The Plaintiffs, however, did not rely merely on the fact that they had obtained the decree, and that the property was liable to be seized; but they made a further allegation, and stated that "Gooroo Das Pyne" the present Appellant, and the Defendant in the suit, "was benefited by the aforesaid timber taken by the kurta Modhoosoodun, and, after the death of Modhoosoodun, himself sold the aforesaid timbers, and appropriated the moneys obtained by the sale of the aforesaid timbers, and regularly conducted the aforesaid case. Both the brothers are, for the reasons mentioned above, answerable under the decree we have obtained in the aforesaid case for the afore-mentioned acts, although the name of Modhoosoodun alone was mentioned in that decree; and therefore we are fully entitled to realise the whole amount by the sale of the properties of both the brothers." Strictly speaking, the claim was to realise the decree from the property of the Defendant. The first Court held that a portion of the property which was claimed by the Defendant was liable to the execution, but that a great portion of it was not. Upon that an appeal was preferred by the Plaintiffs to the High Court, and notice of objections was given by the Defendant. The High Court held that notwithstanding the sale of the timber by the Defendant, and his receipt of the assets which were derived from the sale, he was not liable to have his property attached and sold under the execution against his brother; but they went on, and said:--"But although the Plaintiffs have been ill-advised in bringing their suit in the particular form adopted by them, and though we are unable to give them the particular form of relief desired, we think that on the facts proved we ought if we can, and that we are able to grant them such relief as they would have been entitled to obtain on a properly drawn plaint." It is quite clear that in this case the Plaintiffs did rely in their plaint upon the fact that the Defendant had sold the timber, and had received the proceeds.

(3.) THEN the judgment of the High Court proceeds thus:--"It is quite clear that, Modhoosoodun having misappropriated the Plaintiffs' timber, the value of the same came into the hands of Gooroo Das his brother, whence it ought to have passed into the hands of Moti Basi, and from her the Plaintiffs might have obtained it in execution of their decree. We find on the facts that Gooroo Das has retained the Rs. 22,000 received by the sale of the timber and this money is the Plaintiffs' property. If a portion of it has been invested in the lands which Plaintiffs seek to sell, then such lands belong to them in equity. Whether Gooroo Das has appropriated the money without the consent of Moti Dasi, or whether he has done so in collusion with her with the object of defeating the Plaintiffs' attempt to execute their hardwon decree, the Court ought to compel him to disgorge the amount. We therefore set aside the decree of the Lower Court, and in lieu of it we make a decree with costs in favour of the Plaintiffs against the Defendants jointly and severally for the sum of Rs. 22,000, which Plaintiffs will be entitled to realize in execution." They therefore give against the two Defendants, the present Appellant and the widow, a decree for the Rs. 22,000, which was the amount which the Defendant had received, and which they find that he held from the proceeds of the timber of the Plaintiffs.