- (1.) Appellants in C. M. A. Nos. 656 and 657 of 1952 and C. M. A. No. 104 of 1953 are the plaintiffs who filed a suit for specific performance and obtained a decree. Plaintiffs and 1st defendant are co-sharers in some villages plaintiffs being entitled to 4/7 share and defendants to 3/7 shares. The suit was based on an agreement executed by the 1st defendant on 9-10-1941 to convey the 3/7 share to the plaintiffs for Rs. 45000. It is common ground that on that date the plaintiffs were in enjoyment of the whole village under an agreement for enjoyment by rotation for a period proportionate to the respective shares. Plaintiffs' suit O. S. No. 93 of 1943 for specific performance of this agreement was decreed on 30-12-1944 with a direction to the plaintiffs to deposit Rs. 45000 by 10-1-1945. This sum was deposited on 3-1-1946, and has remained in court deposit ever since earning no interest. An appeal filed by the first defendant, A. S. No. 295 of 1945 in the High Court was dismissed on 1-4-1949 and leave to appeal to the Federal Court was also later dismissed. These villages were subsequently notified by Government under the Estates Abolition Act and were admittedly taken over by Government on 3-1-1951, the proprietors as the learned Advocates agree being entitled only to compensation under this statute.
(2.) First defendant filed E. A. Nos. 151 and 152 of 1952 pressing for execution of the decree for specific performance. On the former application, the Court approved a draft sale deed and directed a fair deed to be executed by the first defendant within three weeks. On the latter application for issue of a refund certificate for "the sum of Rs. 45000 lying in court deposit which had lapsed to Government in March 1948, the learned Subordinate Judge directed the issue of the certificate, with a direction however that notice would be given to the plaintiffs of the date when the amount was sought to be actually taken from court by the first defendant. The first defendant filed E. A. No. 454 of 1952 to review the order in E. A. No. 151 of 1952 directing him to execute a sale deed within three weeks. On this application the Subordinate Judge modified his order by directing the sale deed to be executed within a month after the plaintiffs in the suit required its execution. He also directed that if the parties disagreed as to the need for the execution of the sale deed, they may seek his further direction. In para. G of his order, he gave this as a reason for the order he passed in review: "But under the peculiar cir cum stances, viz. that the order of the Estates Abolition Tribunal, if they turn out as petitioner expects will render the actual execution of a sale deed needless, I think it necessary to relax the direction as to time limit."
(3.) There has, therefore, been really no final order by the Subordinate Judge permitting the first defendant to withdraw Rs. 45000 and compelling the plaintiffs to accept the sale deed contemplated by this specific performance decree. The plaintiffs however apprehend that the combined result of these orders is that the first defendant would not be bound to execute the sale deed but would be entitled to withdraw the purchase money in court deposit. We think that this is a vain apprehension and that the proper course for the plaintiff-appellants was to have moved the Subordinate Judge for the withdrawal of Rs. 45,000, as that decree had be-come impossible of performance on the grounds canvassed before us with much ability and eloquence by Mr. Gopalaswami Aiyangar. As we have heard a long and interesting argument from him and Sri T. Krishna Rao for the first defendant-respondent, we however think that we might decide the interesting point of law these appeals raise without remitting this long pending matter to the Subordinate Judge for a decision and then perhaps an inevitable appeal from it.;