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Sabir HusaIn Khan Vs. Jan Mohammad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All651
AppellantSabir HusaIn Khan
RespondentJan Mohammad
Excerpt:
- - the present suit for refund of the price on the ground of failure of consideration was filed more than six years after the first court's decree set-ting aside the decree which had been purchased but was within three years of the high court's judgment......suit for the setting aside of the decree which he had purchased had been dismissed by the district judge. time would begin to run from the date of the high court's decree which restored the first court's decree. the case of their lordships of the privy council relied upon by the court below is obviously distinguishable. at p. 153 their lordships observed thatunder the indian law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal.3. the decree of the district judge was one of reversal and not dismissal. this view is in accordance with that of the madras high court in sarvothama rao v. chinnasami pillai [1919] 42 mad. 507. i accordingly allow this revision and setting aside the.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a plaintiff's revision from a decree of the Court of Small Cau38S. The plaintiff had purchased a decree which was ultimately sat aside on appeal to the High Court. The first Court had decreed the suit for the setting aside of that decree on the ground of fraud but that decree was reversed by the District Judge. It was on a further appeal to the High Court that the decree of the first Court was restored. The present suit for refund of the price on the ground of failure of consideration was filed more than six years after the first Court's decree set-ting aside the decree which had been purchased but was within three years of the High Court's judgment. The learned Judge of the Court below has relied on the case of Juscurn Boyid v. Pirthi Chand A.I.R. 1918 P.C. 151 and has held that time began to run from the date of the first Court's decree and the claim was barred by time.

2. It seems to me that when the, first Court's decree was set aside by the District Judge it was superseded and it no longer remained in force. It was (impossible for the present plaintiff to have brought a suit for the refund of the sale consideration when the suit for the setting aside of the decree which he had purchased had been dismissed by the District Judge. Time would begin to run from the date of the High Court's decree which restored the first Court's decree. The case of their Lordships of the Privy Council relied upon by the Court below is obviously distinguishable. At p. 153 their Lordships observed that

under the Indian law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal.

3. The decree of the District Judge was one of reversal and not dismissal. This view is in accordance with that of the Madras High Court in Sarvothama Rao v. Chinnasami Pillai [1919] 42 Mad. 507. I accordingly allow this revision and setting aside the decree of the Court below send the ease back to that Court for disposal on the merits. Costs will abide the event.


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