1. The plaintiff in this case obtained a decree against defendant No. 2 and in execution of that decree he brought her property to sale. Defendant No. 2 then entered into an agreement with defendant No. 1 that the latter should make a deposit of Rs. 1,050 in her name in order that the sale might be set aside under Section 310-A of the Civil Procedure Code, and it was further agreed that if the sale was set aside, defendant No. 2 should sell the property to defendant No. 1. Defendant No. 1 accordingly made this deposit himself in the name of defendant No. 2.
2. The application to set aside the sale was granted and the sale was set aside on the 22nd January 1901. Thereafter defendant No. 2 executed a conveyance of most of the land in favour of defendant No. 1 for a consideration of Rs. 900 but this transaction came to nothing because in some way which is not clearly explained the decree-holder appealed against the order passed on the application under Section 310-A of the Code of the Civil Procedure and that order was set aside and the sale confirmed. After that the defendant No. 2 filed an application to withdraw the amount in deposit. The decree-holder at once applied to attach the money in satisfaction of the remainder of his decretal debt.
3. Defendant No. 1 then put in a claim alleging that the deposit money was his own money. This claim was allowed and hence this suit was brought by the plaintiff, decree-holder, to recover from both defendants the sum of Rs. 557 the balance of his decretal amount under his original decree against defendant No. 2.
4. The suit was dismissed by the Munsif; but on appeal the District Judge set aside the judgment and decree of the Court of first instance and decreed the suit.
5. Defendant No. 1 has appealed to this Court.
6. The question, as the learned District Judge pointed out, was whether the money in deposit belonged to defendant No. 1 or to defendant No. 2, and the District Judge begins by expressing his opinion that 'the Munsif is right in holding that it was the intention of the parties from the beginning that the money in deposit should belong to defendant No. 1.' But the learned District Judge thinks that the parties were unsuccessful in carrying out their intention and that the effect of the first defendant's depositing this money in the name of defendant No. 2 was to make it a loan from defendant No. 1 to defendant No. 2. I do not think that this is the necessary effect of that transaction. If the sale had been set aside and the plaintiff, decree-holder, had been defeated or delayed in his attempts to execute his decree, then, no doubt, the defendant No. 1 would not have been allowed afterwards to maintain that this money which he had himself no right to deposit under Section 310-A, and had deposited, therefore, in the name of defendant No. 2, was really his own money. But when on the application of the decree-holder himself that sale was confirmed and the deposit by defendant No. 1 became wholly infructuous, I see no reason why in this suit by the decree-holder in which the depositor is the defendant, the latter should not be allowed to plead what are the real facts. Suppose that this deposit had in the first instance been made 31 days after the sale and the application to set aside the sale had been immediately refused. In that case I do not think it could reasonably have been said that the decree-holder had a right to proceed against it for the balance of his dues against defendant No. 2.
7. It appears to me that when the sale was confirmed on the application of the decree- holder, the parties were restored to their original condition and were practically in the same position as if the deposit had been refused in the first place.
8. For these reasons I am of opinion that the decision of the Munsif is correct that the plaintiff is not entitled to proceed against defendant No. 1 for the balance of the amount decreed in his favour against defendant No. 2. Accordingly the judgment and decree of the lower appellate Court are reversed, and the suit is dismissed with costs.
9. The real question in this case is, who was, on the day the sale was confirmed, the owner of the money which had been deposited by defendant No. 1 in the name of defendant No. 2. If it was the money of defendant No. 2, then undoubtedly the plaintiff had a right to have his decree satisfied out of it. But if it was the money of defendant No. 1, then the plaintiff had no right to proceed against it.
10. Now, this question can only be solved by considering the arrangement under which defendant No. 1 deposited the money in Court. The arrangement was that defendant No. 2 should sell his lands, in case the sale was set aside, but if the sale was not set aside. Defendant No. 1 would take back the money from Court. Therefore, when the sale was confirmed, the condition on which the money was paid into Court failed and the contract between the parties fell through or became impossible of performance. Thereupon, the parties were relegated to their original position and the defendant No. 1 became entitled to have the money paid back to him; or in other words, when the sale was confirmed, defendant No. 1 became the owner of the money. Consequently the decree-holder has no right to follow that money as belonging to defendant No. 2.
11. For these reasons, I am of opinion that the plaintiff's suit should be dismissed and this appeal decreed with costs.