1. This is an appeal from the judgment of Mr. Justice Courts Trotter in a suit brought by the plaintiffs on a contract by the defendant to purchase from them their claim against the estate of a deceased person for Rs. 2,225. Under the agreement executed by the defendant the plaintiffs were restored to their right to sue the estate of the deceased debtor when the defendant failed to pay at the due date, but they did not do so and their claim had become barred when the present suit was instituted. In these circumstances the learned Judge, following Jatindra Nath Basu v. Peyer Deye Debi 34 Ind. Cas. 69 ; 18 Bom. L.B. 509 ; 31 M.L.J. 248 ; 43 I.A. 108 has held that the plaintiffs had disentitled themselves to specific performance of the contract by their failure to keep alive the claim against the estate of the deceased, which they agreed to sell to the defendant. Apart from this, the claim is not one which could be specifically enforced, as it falls under Clause 21(a) of the Specific Relief Act. The contract in Jatindra Nath Basu v. Peyer Deye Debi 34 Ind. Cas. 69 ; 18 Bom. L.B. 509 ; 24 C.L.J. 67 ; 20 M.L.T. 25 ; 3 L.W. 553 ; 31 M.L.J. 248 ; 43 I.A. 108 on the other hand, was for the sale of a mortgage decree and was, therefore, a contract relating to immoveable property, as to which the general rule is that compensation in money is not regarded as an adequate relief even to the vendor. That being so, the plaintiffs were entitled to claim compensation in the alternative under Section 19 and under the Explanation to that section the Court is not precluded from granting it by the circumstance that the contract has become incapable of specific performance. Here there is a claim in the plaint for other relief which will cover compensation, and even in the absence of such a prayer, the Court may award it.Callianji Harjivan v. Narsi Tricum 19 B.K 761 ; 10 Bom. L.R. 512; Sheo Niwaz v. Gopal A.W.N. (1831) 22 ; 2 Ind. Dec. (N.S.) 284. We have, therefore, decided, before disposing of this appeal, to ask the learned Judge to assess the compensation payable to the plaintiffs for the defendant's breach of contract.
2. In pursuance of the order contained in the above judgment, the Judge sitting in the Original Side of the High Court submitted the following.
[Civil Suit No. 402 of 1916.]
3. This case is referred to me, to asses the compensation payable to the plaintiff for the defendants' breach of contract.' The compensation must, I think, be the amount that the 1st defendant ought to have paid, less whatever the claim against the estate of Manicka Mudaliar is worth, plus interest.
4. The only evidence before me is that of the plaintiffs' first witness, who says that he now knows that any claim against this man's estate was at any time worthless, and that it was from first to last an insolvent, estate. The 1st defendant could have rebutted that. He has neither gone into the box nor called any witness; and the 2nd defendant has called no evidence to show that this estate is worth anything. In these circumstances the equation Rs. 2,225--X is a simple one because X=0.
5. Therefore, the principal debt I must find is worth Rs. 2,225. Mr. Oomrigar foregoes any claim for interest and is content to take judgment for the principal sum only. I may add that even if the estate was worth some small amount, I think that probably the interest foregone would far more than make up for the value that could be put upon this claim against the estate.
6. This original side appeal coming on for final hearing after the return of the finding of the Judge sitting on the Original Side of the High Court on the issue referred by this Court for trial, the Court delivered the following
7. We accept the finding and under Clause 3 of the agreement, by which the performance of the agreement was secured, reversing the decree, we pass a mortgage decree for the amount of damages so found on the security of the properties mortgaged by his deposit of title-deeds with costs throughout payable out of the estate.