1. The facts of this case are as follows. The plaintiff who is the zemindar, sued for the rent of a putni, and, under Regulation VIII of 1819, the putni was sold for the arrears of rent. It was purchased by one Peary Mohan Roy for Rs. 15,000 on the 18th May 1900. The surplus sale proceeds were Rs. 13,614-11. Oat of this amount the defendants Nos. 1 to 9 withdrew from Court a sum of Rs. 4,469-9. These defendants were the creditors of the defaulting putinidars. Meanwhile, the defaulting putnidars brought a suit for the setting aside of the sale, and the sale was set aside on the 14th August 1900. The zemindar was then obliged to refund to the purchaser Rs. 15,000; and he now sues to recover the amount which the defendants Nos. 1 to 9 took out of Court.
2. The lower Court has given the plaintiff a decree.
3. The defendants Nos. 1 to 9 appeal to us, and on their behalf it is contended that the plaintiff had no cause of action against them.
4. I am, however, of opinion that the plaintiff had a cause of action against the defendants Nos. 1 to 9. They took out a portion of the surplus sale-proceeds at a time when there was a suit pending, in which the question of the validity of the sale was involved. They, therefore, took out the money, subject to the result of that suit; and when the sale was set aside, there was an implied obligation on their part to return the money to the Court. They did not do so; and consequently the zemindar had to re-pay to the auction-purchaser Rs. 15,000, the whole of which he would not have been obliged to pay, if the defendants Nos. 1 to 9 had fulfilled the implied obligation which was upon them to return the surplus sale-proceeds to the Court.
5. In these circumstances, I do not think it can be said that the plaintiff has no cause of action against the defendants Nos. 1 to 9.
6. The learned Pleader for the appellants calls attention to the case of Roof Channessa Bibi v. Bejoychand Mahatap 8 C.L.J. 288, which, like the case before as, relates to a putni sale, and in which it has been held that the defaulter whose creditor has withdrawn the money is not liable to pay. The Judges in that case do not say that the creditors are not bound to pay. On the contrary, they have clearly implied that there may be a liability on the part of the creditors to pay the money. The learned Chief Justice in his judgment says: 'On this principle I do not see how the present plaintiff can successfully maintain the present suit as against the defendant No. 4 whatever the liability of the defendant No. 1 may be.' Now, the defendant No. 1 in that suit corresponds to the defendants Nos. 1 to 9 in the present suit.
7. Then, it has been contended that the defendants Nos. 1. to 9 are not liable to pay interest. But the Subordinate Judge has pointed out that they had the use of the money and are, therefore, bound on that account to pay interest.
8. It is next contended that this is a hard case for the defendants, because it is alleged that their application for execution may now be barred by limitation. But if this be so and the defendants represent the facts to the Executing Court, that Court will, no doubt, take them into consideration
9. I woud, therefore, dismiss this appeal with costs and would allow two separate sets of costs.
10. I agree.