1. This appeal arises out of a suit for Specjnc performance of a contract to sell land to the plaintiff. The Court below has decreed specinc performance; this appeal by the plaintiff relates to two subsidiary matters, namely, (1) his claim to an amount of Rs. 2,861-5-1 referred to in the sixth issue and (2) the order of the lower Court directing each party to bear his own costs.
2. The first claim arises under the following circumstances. The suit properties were agreed to be sold to the plaintiff for the purposes of discharging certain debts due by the family of the defendants, but as there was some delay in completing the sale transaction, the plaintiff was requested to pay off the creditors even before the execution of the sale deed and he was assured that the amount so paid might be adjusted towards the sale price and that, if the plaintiff had to pay to the creditors anything in excess of the sale price, the same would be made good to him with interest. It is not the plaintiff's case that he paid anything more than the sale price to the defendants' creditors. He managed to get a transfer of the document held by the creditors, on payment of a smaller amount than was actually due under those documents and he now claims that he is entitled to get the benefit of the remission given by those creditors. The lower Court has disallowed this part of the claim and we think its conclusion is right. In making disbursements out of the agreed sale price, the plaintiff was only acting as the agent of the defendants and he was not entitled to retain for his own benefit any remission that he obtained from the creditors. If a contract to the contrary were clearly established, the plaintiff might have some justification for this claim; but even the contract pleaded in the plaint is not sufficient for this purpose because that contract is only to the effect that any excess paid by the plaintiff would be made good to him.
3. As regards the lower Court's order as to costs, we do not think we will be justified in interfering with it unless the appellant is able to show that there has been any error of principle into which the lower Court has fallen in the exercise of its discretion. It is true that the plaintiff has been obliged to spend a pretty large sum in instituting this suit, but we do not find that defendants 2 and 3 ever disputed their liability to execute a sale deed. It is only the plaintiff's claim for the rerriission-amount that has been disputed by those defendants. We therefore find no reason for saddling them with the costs of the suit. The first defendant no doubt did raise other defences which have been found against; but as regards the first defendant's attitude, the plaintiff himself seems to be largely responsible for it. At one time, the plaintiff sided with the first defendant in his disputes with defendants 2 and 3 and gave a notice Ex. II only to defendants 2 and 3 ignoring the sale contract and asking for payment of moneys paid by him in discharge of the debts due by the defendants. The plaintiff and the first defendant fell out later and the first defendant was prosecuted and punished for fraudulent removal of documents. In this suit he has been ex parte both in the lower Court and here, after filing the written statement. While it cannot be said that the first defendant stands in the same position as defendants 2 and 3, we do not see sufficient reason for differing from the manner in which the lower Court has exercised its discretion in the matter of costs.
4. The appeal therefore fails and is dismissed with costs of respondents 2 and 3.