1. This is an interesting point upon which at one time or another there appears to have been a difference of opinion. The plaintiff has suffered the double misfortune of purchasing property of which he has not received delivery from the vendor, and also of paying the price. The defendant has failed to make a title. The suggestion is that he had already sold to somebody else, although that issue has not been actually determined because the case has been disposed of on the legal question. It seems more likely that it was a piece of dishonesty on the part of the vendor than a mere act of forgetfulness, but that does not alter the law. One result is that the plaintiff has paid the purchase price for a consideration, namely, the transferor of the property, which has failed. That is Article 97. Another view of the matter is that he has paid money to the defendant for nothing which the defendant has no right to retain against the demand of the plaintiff, as was said by the old lawyers, against equity and right. That is money received for the use of the plaintiff, which is Article 62. It may be also treated, and good reasons could be given for doing so, as either a breach of a contract in writing or the breach of an implied covenant under Section 55(2), Transfer of Property Act, and varying views have been taken on these alternative possibilities.
2. There is one decision relied upon by the plaintiff in Mul Kunwar v. Chattar Singh  30 All. 402, and there is another case relied upon by him in Arunachala Aiyar v. Ramasami Aiyar  38 Mad. 1171 Both of these decisions treat Article 116 as applicable and come within six years, although Mul Kunwar v. Chattar Singh  30 All. 402 can really fee distinguished from the present case. On the other hand, there is a more recent decision of this Court, namely, Janak Singh v. Walidad Khan  13 A.L.J. 669 decided by Mr. Justice Chamier and Mr. Justice Piggott in 1915, which holds in a similar case, that Arts. 62 and 97 are the appropriate ones. If there were nothing else, we should be prepared to uphold this decision on the ground of the desirability of maintaining a consistent and concurrent authority on a question like this and also, because the Courts below have rightly held themselves bound by this decision they had absolutely no alternative and, therefore, their decision was right until it reached this Court at any rate; but the decision of the Privy Council in Hanuman Kamat v. Hanuman Mandur  19 Cal. 123 appears so us to be so much in point that even if we were disposed to depart from the last decision of this Court, we ought not to do so, but are bound to follow the view taken by the Privy Council. In that case a sale of joint family property went off upon objection made by other co-sharers of the vendor, but the purchase-money was paid before it went off. Like this case the vendor was unable to give title and the purchaser found himself unable to obtain possession. The Privy Council held that from the time when he found himself unable to obtain possession he had a right to, sue for his purchase-money upon a failure of consideration and that the case fell within Article 97 and that in any case it must fall either within Article 97 or Article 62. That is exactly what was decided in Janak Singh v. Walidad Khan  13 A.L.J. 669 and we hold that we are bound to follow that view and to dismiss the appeal with costs.