JUDGMENT

1. This is the defendant's appeal from the decree of the Additional Subordinate Judge of Gonda, dated 8th April 1931. The facts are as follows: On 25th July 1923 the plaintiffs-respondents sold certain plots of land to the defendant for a sum of Rs. 24,000. On the date of the sale the vendors stood indebted under several mortgages to other persons in the sum of Rs. 2,600. The vendee was left in possession of this sum of money with directions that he was to pay the previous creditors. He has not paid them and the object of the suit, out of which this appeal arises, is to recover the aforementioned sum of Rs. 2,600 from the defendant as unpaid, purchase money together, with interest thereon. On.the facts stated above the plaintiffs are prima facie entitled to the decree which the Court below has granted to them. The validity of the decree is however challenged mainly on three grounds. It is urged, in the first place, that the Court below was wrong in ordering a sale of the property sold under the deed of 25th July 1923 in the event of default in payment of the sum decreed on the ground that the sum of Rs. 2,600 left with the defendant purchaser to pay the previous creditors of the plaintiffs was not a charge on the property sold. The second argument was that the suit was barred by limitation, but only in the event of the success of the first contention. Lastly, it was argued that the claim for the recovery of the sum of Rs. 2,600 was premature on the ground that the previous creditors with the exception of one creditor have not so far been satisfied by the plaintiffs. A subsidiary point was also urged that having regard to the conduct of the plaintiffs subsequent to the deed of sale they were not entitled to any interest on the unpaid purchase money and that the rate of interest, that is 9 per cent per annum, allowed by the Court below in favour of the plaintiffs was excessive. After hearing the learned Counsel for the appellant we have come to the conclusion that the decree of the Court below should be maintained in all respects.

2. The first question to be decided is as to whether the sum of Rs. 2,600 left with the vendee under the sale-deed of 25th July 1923 by the vendors for the purpose of satisfying the claims of certain previous creditors of the vendors is or is not a portion of the " unpaid purchase money " within the meaning of Clause (b), Sub-section (4), Section 55, T.P. Act, 1882. It was argued on the authority of a decision of the High Court at Madras in Abdulla Beary v. Mammali Beary, (1910) 33 Mad 446 that the question just no,w formulated by us should be answered in the negative. The argument is this. The covenant in the deed of sale under which the vendee agrees to pay the previous debts of the vendors to the latter's creditors constitutes a contract contrary to the statutory right of the vendors under Clause (b), Sub-section (4), Section 55, T.P. Act. We are un. able to accept this argument. It appears to us that the test as to what would constitute a contract contrary to the statutory right of the vendors to recover any portion of the purchase money by sale of the property sold was laid down by their Lordships of the Judicial Committee in the case of Webb v. Macpherson, (1903) 31 Cal 57. Their Lordships observed that the charge

is not excluded by a mere personal contract to defer payment of a portion of the purchase money, or to take the purchase money by instalments, nor is it.....excluded by any con tract, covenant or agreement with respect to the purchase money which is not inconsistent with the continuance of the charge.

3. In the covenant obtained in the deed of sale, on which the defendant relies, in other words, in the direction given to the vendee to pay a certain portion of the purchase money to the previous creditors of the vendors, we fail to discover any element of inconsistency with the continuance of the charge. The vendors had a clear statutory charge in their favour. This is not dispute