Authored By : Francis Maclean, Banerjee

Francis Maclean, K.C.I.E., C.J.

1. The principle of the case of Bindubashini Dassi v.Harendra Lal Roy I.L.R. (1897) 25 Cal., 305, which was recently before thisCourt, governs the present case, though in the facts there is some distinction.

2. The defendants are certain putnidars; they defaulted intheir rent; the zemindar took proceedings against them; the property wasordered to be sold; it was sold, and the plaintiff, in May 1892, purchased theputni interest at the sale held in pursuance of the order. On the 12th May1894, the sale was, in a suit instituted for the purpose, set aside; thezemindar alone appealed against that decision, and the plaintiff was arespondent on the appeal. In April 1895, during the pendency of the appeal, thezemindar applied to the plaintiff to pay the rent which had accrued from the13th April 1894 to November in that year, and in the same month he institutedproceedings against the plaintiff to enforce his rights upon the footing of thenon-payment of the rent. On the 16th May 1895, the plaintiff paid the moneyclaimed amounting to Us. 2,000 or thereabouts. On the 9th August 1895, theappeal was heard and the decision of the Court below setting aside the sale wasaffirmed. On the 12th December 1895, the present suit was instituted by theplaintiff against the defendants, the bulk of whom are the putnidars, the onlyother defendant being the zemindar. He claims to recover the Rs. 2,000 upon theground that when he made the payment he was a person interested in the paymentof the money which the putnidar were bound by law to pay, and that he isentitled to be reimbursed by them.

3. Both the lower Courts have decided against him; hencethis appeal. The first question is, whether the case falls within Section 69 ofthe Contract Act. I think it does. It is difficult to say that, at the time theplaintiff made the payment, he was not interested in that payment which theputnidars were bound to make. If the decision of the lower Court had beenreversed by this Court, the plaintiff would have been confirmed in his positionas putnidar; and as such would have been liable to pay the rent to thezemindar. No doubt at the time he made the payment it had been held that thesale ought to be set aside, in which case his interest in the putni lease wasgone. But at the same time an appeal was pending, and there was the possibilityat least of a reversal of the decision. Under these circumstances can it besuccessfully urged that he was a mere volunteer, and not interested in thepayment of the money, which, as matters have eventuated, the presentrespondents are bound by law to pay We should be placing a narrow constructionupon the section if we acceded to this view. If he had not paid it and thedecision had been reversed, he would have run the risk of his putni interestbeing sold at the suit of the zemindar. The defendants have had the benefit ofthis payment, if it had not been made, their putni lease might have been againput up for sale at the suit of the zemindar. The principles of justice, equityand good conscience appear to me to demand that the plaintiff should bereimbursed by the defendants, the putnidars.

4. But it is said that the concluding sentence of the firstclause of Section 14 of Regulation VIII of 1819 virtually bars this suit, andthat the plaintiff is not entitled to maintain it, and that he ought to haveapplied in the previous suit for the reimbursement in question. In point offact he had made no payment when the suit was before the first Court, though hehad when it was before this Court. If the attention of this Court had beendirected to the matter, I am not prepared to say that it might not have made anorder reimbursing the plaintiff against this payment, or for any other loss hemight have sustained, but I am not prepared to say that, when the sectionspeaks only of the Court being careful to indemnify the person paying againstall loss, that is sufficient to deprive the plaintiff of a right to maintainthe present suit. The language of the section is not sufficiently precise tojustify us in saying that the plaintiffs right to sue for reimbursement istaken away.

5. In the result, the appeal will be allowed with costs asagainst the respondents Nos. 1 to 13 and dismissed with costs as against therespondent No. 14. There must be the usual decree for payment of the amountclaimed, with the costs of the suit.

Banerjee, J.

6. I agree with the learned Chief Justice in thinking thatthis case comes within the scope of Section 69 of the Contract Act, and isgoverned by the principle laid down in the cases of Dakhina Mohun Roy v.Sharoda Mohun Roy (1893), ., 21 Cal., 142, and Bindubashini Dassi v. HarendraLal Roy I.L.R. (1897) 25 Cal., 305.

7. It was contended for the defendants, in the first place,that the plaintiff was not a person interested in the payment of the money inquestion within the meaning of Section 69 of the Contract Act, and that thepresent case is distinguishable from the cases to which I have just referred,because the payment here was made after the decision of the first Court in thesuit for reversal of the putni sale by which it was held that the sale wasinvalid, and during the pendency of an appeal preferred, not by the plaintiff,the auction-purchaser, but by the zemindar, at whose instance the putni salehad been brought about; and in the second place, it was contended that the suitwas barred by the provisions of the first clause of Section 14 of RegulationVIII of 1819. Then it was, in the third place, contended on behalf of thedefendant No. 8, that he ought not to be held liable in any event, as thepayment was made by the plaintiff at a time when the putni was in the possession,not of all the putnidar defendants, but of defendants Nos. 1 to 5 only.

8. I am of opinion that the first contention is not sound,and that the circumstances relied upon do not really distinguish this case fromthe cases to which reference has been made above, and do not take this case outof the purview of Section 69 of the Contract Act. It is quite true that thedecision of the first Court in the suit for reversal of the putni sale was infavour of the defaulting putnidars, but that did not preclude the possibilityof a contrary decision being arrived at by the Court of Appeal, and the fact ofthe plaintiff not having been the appellant did not make him any the less aperson interested in the payment, when the appeal of the zemindar would, if successful,have inured to the benefit of the plaintiff.

9. Section 69 of the Contract Act does not require that theperson who made the payment should have done anything actively to keep up theinterest which he claims. All that is required is, that the payment should bemade by a person who is interested in the payment; and the plaintiff wasclearly interested in the payment that he made, seeing that if it had not beenmade and the putni had been sold in consequence, it would have prevented himfrom reaping the advantage that he might have gained in the event of thesuccess of the zemindars appeal.

10. Nor is there much force in the second contention. Allthat Section 14 of Regulation VIII of 1819 says, with reference to the pointnow before us, is this--that "the purchaser shall be made a party in suchsuits, and upon a decree passing for reversal of the sale, the Court shall becareful to indemnify him against all loss at the charge of the zemindar orother person at whose suit the sale may have been made."

11. This, no doubt, provides for the auction-purchaser, inthe event of reversal of the sale, being indemnified against all loss that mayhave been sustained by him, and the remedy is to be at the expense of thezemindar at whose instance the sale was brought about. But it does not say thatthe remedy prescribed is to be the sole remedy to which the auction-purchaseris entitled, notwithstanding that, by virtue of any other provision of law, hemay be entitled to a remedy against any other person than the zemindar.

12. If then Section 69 applies to the case, and as I saidabove it does apply to it, and the plaintiff is, in consequence, entitled to bereimbursed by the defaulting putnidars, who were bound to pay the money, theprovisions of Section 14 of Regulation VIII of 1819, quoted above, cannot, inmy opinion, stand in the way of the plaintiffs obtaining such relief. That thedefaulting putnidars were liable for the rent, the demand for which wassatisfied by the plaintiffs payment, is not disputed, and cannot be disputed.That being so, I do not think that the remedy which the plaintiff has underSection 69 of the Contract Act is curtailed by the provisions of Section 14 ofRegulation VIII of 1819 quoted above.

13. As to the third contention, namely, the one urged onbehalf of the defendant No. 8, I do not think that his case can bedistinguished from that of the other putnidars, defendants, because he was asmuch bound by law to pay the rent which was paid by the plaintiff as the otherputnidars who had been put in possession under Section 501 of the Code of CivilProcedure. There is no valid reason shown why he should be held not bound bylaw to pay the arrears of rent due on account of this putni when he claims tobe interested in the putni just as much as the other putnidars are. Thecontentions urged before us on behalf of the respondents in support of thelower Courts judgment therefore all fail.

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Radha Madhub Samontavs. Sasti Ram Sen and Ors.(22.02.1899 - CALHC)