- (1.)This is an appeal from the judgment of Mr. Justice Courts Trotter in a suit brought by the plaintiffs on a contract by the defendant to purchase from them their claim against the estate of a deceased person for Rs. 2,225. Under the agreement executed by the defendant the plaintiffs were restored to their right to sue the estate of the deceased debtor when the defendant failed to pay at the due date, but they did not do so and their claim had become barred when the present suit was instituted. In these circumstances the learned Judge, following Jatindra Nath Basu v. Peyer Deye Debi 34 Ind. Cas. 69 ; 43 C. 990 ; 14 A.L.J. 527 ; 20 C.W.N. 866 ; (1916) 1 M.W.N. 403 ; 18 Bom. L.B. 509 ; 24 C.L.J. 67 ; 20 M.L.T. 25 ; 3 L.W. 553 ; 31 M.L.J. 248 ; 43 I.A. 108, (P.C.), has held that the plaintiffs had disentitled themselves to specific performance of the contract by their failure to keep alive the claim against the estate of the deceased, which they agreed to sell to the defendant. Apart from this, the claim is not one which could be specifically enforced, as it falls under Clause 21(a) of the Specific Relief Act. The contract in Jatindra Nath Basu v. Peyer Deye Debi 34 Ind. Cas. 69 ; 43 C. 990 ; 14 A.L.J. 527 ; 20 C.W.N. 866 ; (1916) 1 M.W.N. 403 ; 18 Bom. L.B. 509 ; 24 C.L.J. 67 ; 20 M.L.T. 25 ; 3 L.W. 553 ; 31 M.L.J. 248 ; 43 I.A. 108, (P.C.) on the other hand, was for the sale of a mortgage decree and was, therefore, a contract relating to immoveable property, as to which the general rule is that compensation in money is not regarded as an adequate relief even to the vendor. That being so, the plaintiffs were entitled to claim compensation in the alternative under Section 19 and under the Explanation to that section the Court is not precluded from granting it by the circumstance that the contract has become incapable of specific performance. Here there is a claim in the plaint for other relief which will cover compensation, and even in the absence of such a prayer, the Court may award it.Callianji Harjivan v. Narsi Tricum 19 B. 761 ; 10 Bom. L.R. 512; Sheo Niwaz v. Gopal A.W.N. (1831) 22 ; 2 Ind. Dec. (N.S.) 284. We have, therefore, decided, before disposing of this appeal, to ask the learned Judge to assess the compensation payable to the plaintiffs for the defendant s breach of contract.
(2.)In pursuance of the order contained in the above judgment, the Judge sitting in the Original Side of the High Court submitted the following. FINDING. [Civil Suit No. 402 of 1916.]
(3.)This case is referred to me, to asses the compensation payable to the plaintiff for the defendants breach of contract." The compensation must, I think, be the amount that the 1st defendant ought to have paid, less whatever the claim against the estate of Manicka Mudaliar is worth, plus interest.