Judgement

Appeal (No. 82 of 1927) from a decree of the Court of the Judicial Commissioner, Central Provinces (August 22, 1925), setting aside a decree of the District Judge, Nimar, which reversed a decree of the Subordinate Judge of Khandwa.

The suit was brought by the appellant against the respondent for specific performance of an agreement; he claimed an order that the respondent should execute a sale deed of a certain village, and alternatively repayment with interest of Rs. 5000 advanced by him together with compensation.

The facts of the case and the decisions of the Courts in the Central Provinces appear from the judgment of the Judicial Committee.

April 16. Dunne K.C. and Parikh for the appellant. By the Code of Civil Procedure, ss. 100, 101, the finding of the District Judge that the agreement was not extortionate or even harsh was binding in the second appeal Durga Choudhrain v. Jawahir Singh Choudhri. (( 1890)

L. R. 17 I. A. 122, 127.) In any case, having regard to Raghunath Prasad v. Sarju Prasad (( 1923) L.

R. 51 I. A. 101.), there was no ground for holding that the bargain was unconscionable. The decree for specific performance should have been affirmed. Under the explanation to s. 12 of the Specific Relief Act, 1877, it is to be presumed that compensation would not be an adequate remedy. There was no ground for the District Judges view that it would be. In any case, s. 12 (d) gave him a discretion to decree specific performance if he was of opinion that pecuniary compensation could not be got. It is to be assumed that he so found. If a substantive decree for specific performance is precluded by s. 21 (a), the decree should provide that upon failure to pay the decreed sum within a limited period, the property should be transferred.

Kyffin for the respondent. It is conceded that the finding of the District Judge as to the value of the property was binding in the second appeal, but his finding that the bargain was not extortionate was wrong in law. In any case, as he found that pecuniary compensation would be an adequate remedy, ss. 12 and 21 of the Specific Relief Act preclude a decree for specific performance, "even as an alternative relief. It was not contended in India, nor is it by the appellants case in appeal, that pecuniary compensation could not be got.

Parikh in reply. Under s. 151 of the Code a decree in the alternative form suggested can be made if necessary for the ends of justice.

May 9. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is an appeal by the plaintiff in the suit from a decree of the Court of the Judicial Commissioner, Central Provinces, setting aside a decree of the District Judge, Nimar. The date of the first mentioned decree was August 22, 1925, and the date of the second mentioned—namely, that of the District Judge—was May 8, 1924.

In 1908 the defendant-respondent had instituted a suit against two widows to recover possession of an estate known as the Bhamgarh Zamindari, and after having obtained a decree in his favour, that decree was reversed by the Court of the Judicial Commissioner. He desired to prosecute an appeal to His Majesty in Council, and to enable him to do so he had to raise money. He entered into an agreement with the plaintiff on November 11, 1912, with regard to the advance of the sum of Rs. 5000 by the plaintiff on the terms therein mentioned. The agreement was as follows "I have brought from you Rs. 5000 in order to file my appeal to the Privy Council, and at this time I am very badly in need of this amount, because if you do not pay me the amount now, it will be extremely difficult for me to file the appeal. Therefore I lay down in writing and bind myself by this agreement that when I may win my case in the Privy Council in England and a decree may be passed in my favour, I shall at once sell, in lieu of this amount, the full sixteen anna proprietary rights of mauza Khedi out of my villages .... under a duly registered sale-deed and put