KINKHEDE,A.J - (1.) THE appellant took a lease of the house in suit from defendant 1 Ganpat on 9th September 1920, for a period of 10 years. Thereafter ,on the 28th September 1920, Ganpat mortgaged it to defendant 2 Hydar Ali and agreed to sell the same to him for Rs. 5,000. The very next day he also agreed to sell the same to Dalchand and received a payment of a part of the price, Rs. 500. Subsequently on the 2nd October 1920, he executed a sale-deed in Dalchand's favour and received Rs. 960 at the registration of the sale-deed which took place on 4th October 1920.
(2.) HYDAR Ali, on the strength of the transaction entered into by him, sued defendant Ganpat and Dalchand for specific performance and possession of the house. That suit was compromised on the 11th April 1921. and it was agreed that Dalchand should deliver possession on the 9th September 1930, to Hydar Ali. It was also agreed that Hydar Ali should withhold payment of the balance of the price to Ganpat until the appellant Dalchand had instituted a suit for the recovery of the amount due to him which the latter agreed to institute within a fortnight. Dalchand accordingly instituted this suit on the 14th April 1921, and obtained an order of attachment before judgment in respect of the moneys in Hydar Ali's hands and got the notice served on 15th April 1921. But in contravention of the order of attachment, Hydar Ali paid the amount to defendant Ganpat on the 27th April 1921. The plaintiff failed to obtain a decree against Hydar Ali in the Courts below on the ground that he had no cause of action against Hydar Ali, particularly as the latter was not guilty of any breach of the contrast to withhold payment for the space of 15 days from the date of the compromise . which he made with Dalchand. It was held also that plaintiff had no charge against the property in suit, or Rs. 2,000, the balance of unpaid purchase money in the hands of Hydar Ali. The plaintiff has, therefore, come up in second appeal and I think it must succeed so far as the claim for a charge is concerned.
(3.) THE personal contract set up by the plaintiff with Hydar Ali was one for withholding payment for a fortnight. It was not for a total abstention from payment to Ganpat or for payment over to plaintiff. The promise was duly fulfilled by Hydar Ali, as will be seen from the date of the payment which is a few days after the lapse of a fortnight from the date of the compromise. The Courts below were, therefore, right in holding that plaintiff had no cause of action to sue the defendant Hydar Ali for the amount. The plaintiff's claim was decreed against defendant Ganpat.;