1. The District Judge in appeal has dismissed the plaintiff's suit on the ground that the plaintiff, instead of suing for specific performance of the contract, should have made his application in execution.
2. We think that the District Judge should not have dismissed the suit when Section 47, Civil Procedure Code, permits suits to be treated as proceedings under this section.
3. The only reason given by the District Judge for this course is that the Court which decided the suit would have had no jurisdiction to determine the matter in execution. This is not in our view a sound reason. This suit itself, though tried by the Temporary Subordinate Court of Ramnad, was instituted in the Permanent Subordinate Court of Ramnad, before which proceedings in execution of Original Suit No. 166 of 1907 of the Chief Court of Rangoon were actually pending at the time of this suit, the decree having been transferred to that Court for execution. The Temporary Subordinate Court is a relieving Court, trying such suits as are transferred to it from the Permanent Subordinate Court. It was quite within the power of the District Judge to do justice to the parties by directing the suit to be treated as a proceeding in execution and at the same time transferring it to the file of the Permanent Subordinate Court for disposal.
4. The respondents' Pleader now seeks to support the lower Appellate Court's order by arguing that the District Judge was wrong in thinking that the plaintiff could sue upon the contract entered into by the respondents with Annamalai Chettiar. On the face of it this contention is a good one, as the contract, Exhibit A, purports to be one only between Annamalai Chettiar and the respondent and a stranger would not be entitled to enforce it specifically. See Iswaram Pillai v. Taregan 26 M.L.J. 127 and Jamna Das v. Ram Autar Pande 13 Ind. Cas. 304 : 11 M.L.T. 6 : (1912) M.W.N. 32 : 15 C.L.J. 68. But the appellant's Pleader now maintains that Annamalai Chettiar was plaintiff's agent and that the Subordinate Judge found him in fact to be so. The District Judge pronounced no opinion on the question of fact whether Annamalai Chettiar was the plaintiff's agent or not. The plaintiff let in no oral evidence on the point and contented himself with relying on the documentary evidence of the vartamanam and Jiundi, the genuineness of which was not disputed.
5. We must set aside the District Judge's decree and direct him to take the appeal again on his file and to dispose of it in the manner we have indicated above. When the matter comes before the Court executing the decree, the question whether Annamalai Chettiar was the plaintiff's agent or not will be res Integra so far as that Court is concerned and either party will thus be in a position to adduce evidence on the point, if so advised.
6. Though we have allowed the appeal, we recognise the fact that the appellant has secured an advantage which he lost by his negligence in not setting out his case properly and by not supporting it in the first Court by proper evidence. We do so by directing that in this Court he should bear his own and respondents' costs. The lower Court's order as to costs already incurred will stand.