Judgement

Appeal (No. 4 of 1943) from a judgment and decree of the High Court (October 3, 1939) which affirmed a judgment and decree of the District Judge of Nimar (September 7, 1936) which in turn had affirmed a judgment and decree of the Subordinate Judge of Khandwa (February 19, 1936).

The following facts are taken from the judgment of the Judicial Committee. This appeal arose in execution proceedings in the following circumstances. In the year 1908 Rao Kishore Singh had instituted a suit against two widows to recover possession of an estate known as Bhamgarh Zemindary. In that litigation Kishore Singh was claiming that the estate was an impartible one and had descended upon him under the rule of primogeniture as the eldest male descendant of the last holder. His claim, if successful, would clearly operate for the benefit of an eldest son who might succeed him. Kishore Singh obtained a decree in his favour from the trial court, but the decree was reversed by the Court of the Judicial Commissioner of the Central Provinces. To raise money to enable him to prosecute an appeal to His Majesty in Council Kishore Singh, on November 11, 1912, entered into an agreement with one, Ramji Pat el, under which Ramji Patel was to advance Rs.5,000, and if Kishore Singh succeeded in his appeal he was to sell a part of the said estate to Ramji Patel on the terms specified in satisfaction of the loan.

Kishore Singh succeeded in his appeal before the Judicial Committee of the Privy Council but refused to carry out his agreement with Ramji Patel. Accordingly, Ramji Patel instituted a suit in the Court of the District Judge of Nimar asking for specific performance of the said agreement or, in the alternative; an order for repayment of the amount advanced with interest. That suit also ultimately went in appeal to His Majesty in Council, and the Judicial Committee held that Kishore Singh was entitled to specific performance of the agreement of November n, 1912, but that compensation in money would afford adequate relief. Accordingly, by Order in Council dated May 10, 1929, their Lordships reported to His Majesty that a decree should be made in favour of the appellant for Rs. 20,000, with interest thereon at the rate of 6 per cent, per annum until realization, and that there ought to be paid to the appellant certain costs of the appeal. A decree was duly passed pursuant to the said Order in Council and before the death of Kishore Singh part of the Bhamgarh Estate was attached in execution of such decree. Kishore Singh died on August 11, 1930, and the present appellant, as his eldest son, succeeded to the Bhamgarh Estate and was thereupon brought on record in the execution proceedings as legal representative of Kishore Singh.

On December 8, 1930, the appellant made an application to the execution court asking for a stay of execution to enable him to raise the money due. He did not suggest that the decree could not in law be executed against him. However, on March 12, 1934, the appellant made a further application in the said execution proceedings alleging that the property under attachment formed a part of the Bhamgarh Estate, which was impartible and governed by the law of primogeniture; that the property had been attached in a personal decree against Kishore Singh; and that the property in dispute was not an asset of the late Kishore Singh in the hands of the appellant who claimed to be the sole owner; and the appellant prayed that the property be released from attachment and the execution be stayed. That application was dismissed by the judge in the execution proceedings on February 19, 1936. The appellant appealed to the District Judge, and his appeal was dismissed on September 7, 1936. He then presented a second appeal to the High Court of Judicature at Nagpur (Stone C.J. and Bose J.), which was dismissed on October 3, 1939. From that judgment this appeal was brought on the certificate of the said High Court. The respondents were the representat