1. This is an application for revision of a judgment of the Small Cause Court at Agra.
2. The suit was brought by the plaintiff for the purpose of recovering a sum of Rs. 200 which he had paid as earnest money in the following circumstances:
On the 11th of October, 1915, the plaintiff had entered into a contract with the father of the defendants for the sale of certain property. Afterwards the plaintiff sued the father of the defendants for specific performance of the contract. That suit was dismissed finally by a judgment of this Court. The plaintiff now brings the present suit for recovery, of the earnest money paid. The father having died in the) meantime, the suit was brought against the sons.
3. Two pleas were raised in the court below in order to defeat) the plaintiff's claim. It was argued, in the first place that the suit was barred by the provisions of order II, Rule 2; of the Code of Civil Procedure. The lower court overruled this) plea and in my opinion rightly.
4. The learned Counsel for the applicant bases his claim upon the provisions of Section 29 of the Specific Belief Act. The lower court in its judgment refers also to the language of Section 19 of the same Act.
5. Section 19 enables a person who is claiming specific performance to ask, in addition, for compensation. Section 29 bars a subsequent suit for compensation after a suit for specific relief has been dismissed. Neither of these sections has anything to do with the present case, where the claim is for recovery of the earnest money. Order II, Rule 2, has no application. The claim for the earnest money is based upon a different cause of action from that of the claim for specific relief I may refer in this connection to the case of Paranqodqn Nair v. Perumtoduka Illot Chata (1903) I.L.R. 27 Mad. 380.
6. The other plea raised was a plea of limitation. The defendants contended that article 62 was the proper article to apply, on the ground that the money advanced by way of earnest money should be deemed to be money had and received, and that the suit under this article was barred by limitation. The lower court rejected this plea and applied article 97 of the schedule to the Limitation Act, holding that the suit was one to recover money paid on an existing consideration which had afterwards failed. The lower court took the starting point of limitation to be the date of the judgment dismissing the plaintiff's suit for specific performance. Clearly this was a correct decision. The case is covered by authority: Udit Narain Misra v. Muhammad Minnat-Ulla (1903) I.L.R. 25 All. 618. Another case which is in point is Amma Bibi v. Udit Narain Misra (1908) I.L.R. 31 All. 68 a decision of their Lordships of the Privy Council, in which the judgment in the case of Udit Narain Misra v. Muhammad Minnat-Ulla (1903) I.L.R. 25 All. 618 was upheld.
7. The applicant has relied on Hanuman Kamat v. Hanuman Mandur (1891) I.L.R. 19 Calc. 123. That was a case where one member of a joint family governed by Mithila law had executed' a sale. It was there held that an agreement for sale by a member of a joint family was not void but voidable, and that the consideration only failed when the purchaser, being opposed, found himself unable to obtain possession. The failure of consideration did not take place when the money was paid, so as to bring the case under article 62 of the schedule to the Limitation Act. On page 126 of the report their Lordships say:
IT there never was any consideration, then the price paid by the! appellant was money had and received to appellant's use. But their Lordships think that the sale was not necessarily void but was voidable only if objection wore taken to it by the other members of the joint family. If so, the consideration did not fail at once, but only from the time when the appellant, endeavoured to obtain possession of the property, and, being opposed, found, himself unable to obtain possession. There was then, at all events, a failure of consideration.
And, therefore, article 97 applied
8. This is exactly the case here and I hold that the decision of the court below is correct. It has been represented to m6 that the lower court has given a personal decree against the) defendants and it is said that in the circumstances, the father, having died, no personal decree ought to be made against the sons. On the other hand, there is the consideration that, the; father having died, the sons are under a pious obligation to discharge his debt. I do not think there is any ground for interference with the decision of the court below. The application is dismissed with costs.