M. J. Rao, C. J. (Oral)

( 1 ) THE application for exemption is allowed subject to just exceptions. RFA (OS) 14/95 and C. Ms 1226 and 1227 /95

( 2 ) THIS is an appeal by the defendants (vendors) against the Judgment of the learned Single Judge decreeing the suit for refund of Rs. 3 lakhs paid by the (purchasers) respondents/plaintiffs to the appellants under a contract of sale. Learned single Judge awarded decree for the said amount and also pendente lite interest.

( 3 ) THE suit was filed under Order 37, Civil Procedure Code. The agreement was dated 22. 2. 1990 and was executed by the appellants in favour of the respondents for sale of immovable property. The appellants received a sum of Rs. 3 lakhs under the contract. The time for performance was 7 months. If a suit for specific performance was to be filed, it should have been filed on or before 21. 2. 1993. But the present suit was one for refund of money and was filed on 10. 7. 1994. This suit for refund came to be filed under the following circumstances.

( 4 ) THE land was acquired under Section 4 (1) of the Land Acquisition Act on 6. 6. 1991 and a declaration under Section 6 was issued on 18. 12. 1991. The award was passed on 2. 4. 1993. The entire compensation was received by the appellants and other co-owners of the property. The learned Single Judge had earlier in another case held that a suit under Order 37, Civil Procedure Code. could not be filed against the legal representatives of a person, who was liable to pay money. But in the present case, when the appellants sought to rely on the same, the said Judgment was distinguished by the learned Judge on the ground that in so far as the principal amount was concerned, it was received by the vendor. On the footing that the claim for interest which accrued as against the legal representatives may not be decreed, the plaintiffs, who had sought for Rs. 3 lakhs plus interest, in all Rs. 5,36,000. 00 and odd agreed to forego the interest that accrued. In the result, the suit was decreed for Rs. 3 lakhs with pendente lite interest.

( 5 ) THE earlier Judgment of the same learned Judge wherein he had held that a suit does not lie under Order 37 Civil Procedure Code. against the legal representatives of a debtor was set aside by us in an appeal filed by the plaintiffs in that suit vide our Judgment in FAO (OS) 2 of 1995 decided on 8. 9. 1995. Therefore, the point that a suit under Order 37 Civil Procedure Code. does not lie against the legal representatives does not survive. A suit under Order 37 Civil Procedure Code. , we have held in our Judgment, lies against the original borrowers or against their legal representatives or if there was more than one borrower, against remaining borrowers and the legal representatives of the deceased borrowers. Hence that plaint is no longer available to the appellants. Be that as it may, in the interregnum the appellants had the benefit of the plaintiffs foregoing nearly Rs. 2. 36 lakhs, which accrued to them as interest prior to suit.

( 6 ) A contention was raised before us that inasmuch as the plaintiffs were prepared to accept Rs. 3 lakhs the plaint ought to have been returned because the pecuniary jurisdiction of this Court applies only in cases where the value is more than Rs. 5 lakhs. Firstly, the plaint stands as it stood when it was filed. Merely because during the course of the trial or arguments, plaintiffs conceded that the Court need not decide an issue relating to a relief, the pecuniary value of the suit does not come down. Secondly, from the impugned Judgment no such contention as to pecuniary jurisdiction appears to us to have been raised before the learned Single Judge. It is well settled vide Kiran Singh and Others vs. Chaman Paswan and Others (A. I. R. 1954 S. C. 340) that objections relating to territorial jurisdiction and pecuniary jurisdiction cannot be permitted to be raised for the first time in an appeal unless prejudice is shown. Or else, such objection must be deemed t

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