MT MAHMOODA BIBI Vs. MTNAINOO BIBI

JUDGEMENT

(1.) In this matter I had come to a conclusion at the end of the hearing; I reserved judgment because I desired to reconsider the whole matter. It is clear that the parties attach great importance to the result. The matter was argued at length before me and from the fact that large number of counsel were briefed including the Advocate-General the parties must have gone to very great expense. I regret I am unable to assist them. The point is shortly this. A Commissioner in a partition suit has entered into an agreement to sell. The purchaser is represented before me. The application is in terms for an injunction restraining the Commissioner and the purchaser Messrs. Magniram Bungur from proceeding with the sale. I omit the verbiage. Secondly, that the Commissioner of Partition be directed to accept the highest offer of Khan Bahadur Syed Mahomed Jan. That was an offer, as I shall indicate, made subsequent to the agreement for sale, though in form asking for an injunction what the applicants ask for before me is a direction or order on the Commissioner not to complete. That is the relief asked for.

(2.) The short facts are as follows: The partition suit was filed in 1916. As far as I remember there were then four parties to the suit, at this moment there are forty. There was a consent decree the terms of which I have myself referred to by which the parties agreed to a sale by the Commissioner of the property now in question. The property was not sold for many years. The date of the consent decree to which I have referred is 26 March 1920. On 28 August 1929 there was an order for sale made is the suit of the land in question which is Ex. A to the petition. That order incidentally directed the Commissioner to fix a reserve and to sell provided he, "the Commissioner, shall consider that a sufficient sum has been offered". Under this order on 26 July 1935 an agreement was entered into with the Dominion Insurance Company for a sum of Rs. 2,76,400. This purchaser failed to complete. By reason of this failure there was a further order on 7 September 1936 a copy of which was banded up to me by which the cancellation of the agreement with the Dominion Insurance Company was directed and the Commissioner was further directed to sell in terms of the earlier order, that is, the order of 28 August 1929. The Commissioner amended certain conditions of sale, those are mentioned in paras. 9 and 10 of the petition. On the 28 September the Commissioner called a meeting of the parties and the minutes of this meeting and those of the subsequent meeting on the 2 October, are exhibited. On the 2 October, the offer of Magniram Bungur was accepted on the amended condition of sale for the sum of Rs. 2,76,400.

(3.) On the 8 October Magniram Bungur made a deposit of Rs. 25,000. On the 5th, 6 and 8 October meetings were held by Commissioner for settlement of the draft agreement. I think the notice of motion in this matter was taken out on the 7 December for the reliefs I have already indicated and an interim injunction was granted. There was a hearing on the 4th January and it was at this hearing I think that on a preliminary point being taken by Mr. B.N. Ghose for the purchaser, counsel for the applicant made it clear the relief he was asking for was really in the nature of directions upon the Commissioner not to complete. There being no suit, it is obvious that there can be no injunction against the purchaser or indeed against anyone. It was on that date also I think the purchaser made it clear that he was ready to complete immediately if the injunction were removed.