R.N.SHARMA, J. - (1.) THIS is a second appeal from the judgment and the decree of learned District Judge, Lucknow, dismissing the appeal of Smt. Nanuho Bibi against the judgment and the decree of the learned Munsif, North, Lucknow, decreeing the suit of respondent No. 1, Ram Swarup Rustogi against her for recovery of Rs. 2000/- with costs. When this appeal came up before a learned single Judge of this Court, he referred it to a Bench because apparently he found some conflict between the authority of the decision in Kalika Prasad v. Sarju Prasad, AIR 1942 All 90 (2) and the provisions of S. 230 of the Indian Contract Act. Thus this appeal was heard by this Bench.
(2.) SMT . Nannho Bibi appellant before us was the owner of a house. According to the concurrent finding of the two Courts below she authorised respondent No. 2 Emron and Sons, auctioneers, to sell her house by public auction or by private negotiations. After advertisement respondent No. 2 held auction at the house on 11-10-1955. The highest bid was of respondent No. 1 Ram Swarup Rastogi and it was accepted. A sum of Rs. 2000/- was deposited by him with the auctioneer as earnest money. It is alleged that the bidder respondent No. 1 was required to deposit Rs. 3000/- more by 13-10-1955 to make up 25% of the auction price as earnest money. Somehow the amount of Rs. 3000/- could not be deposited till 14-10-1955 and in the meanwhile the appellant transferred the house by means of a gift deed in favour of her son and daughter. Respondent No. 1 asked for the return of the amount of Rs. 2000/- deposited by him and because it was not returned to him he filed a suit for recovery of this amount against the appellant as well as the auctioneer. Both defendants of the suit contested it. The appellant pleaded that she had not given any authority to the auctioneer to sell the house and any transaction conducted by the auctioneer was not binding on her. The auctioneer pleaded that the sale was conducted on behalf of the appellant, that the amount of Rs. 2000/- stood forfeited because the auction purchaser did not fulfil his part of the contract for which time has been allowed to him and that it was the appellant who was liable for return of the consideration. The trial Court held that auction of the house was made at the instance of the appellant and that the auctioneer acted as her agent. Thus the auctioneer was held not liable for return of the consideration although it was also held that he had no right to forfeit the amount advanced to him. The suit was therefore decreed against the appellant alone. The appellant went in appeal to the District Judge who agreed with the trial Courts finding that a valid authority had been given by the appellant to the auctioneer for selling the house and that the auctioneer acted as agent of the appellant. The learned Judge held that "the mere fact that the money may not have been paid to the appellant would not save her from liability to repay."
(3.) IT was also urged before the learned District Judge on behalf of the appellant that under O. 41, R. 33 of the Code of Civil Procedure, a decree should be passed against the auctioneer respondent No. 2, in favour of respondent No. 1, and she should be absolved from liability because she had not received the money. The learned District Judge however observed that respondent No. 1 had prayed for a decree against both the appellant as well as respondent No. 2 bat the suit was decreed only against the appellant. Because respondent No. 1 had not preferred appeal against this decision and was apparently satisfied with the decree, no relief could be given to the appellant under the provisions of O. 41, R. 33, Code of Civil Procedure and it was open to the appellant to file a suit against respondent No. 2, With these observations the appeal was dismissed.;