1. We are invited by the petitioners in this Rule to set aside a decree, so far as it affects them, in a suit brought against them and other persons for the balance of price of cloth sold. The allegation of the plaintiff is that on various dates between the 3rd June and the 21st August 1911, he sold goods on credit to one Gour Basna, the father of, the second and son of the first defendant; that Gour Basna did not pay for those goods in full and that the plaintiff was, consequently, entitled to recover the balance of price due. Gour Basna died on the 11th September 1911, and, the plaintiff commenced this action eight days later, not merely against the first two defendants, who are the representatives of Gour Basna, but also against three other persons on the allegation that the latter had fraudulently and wrongfully taken possession of the goods while Gour Basna was on his deathbed. The claim was resisted by these three defendants on the ground that as against them there was no cause of action. The Small Cause Court Judge has overruled this objection and made a decree against not only the first two but also the fourth and fifth defendants. There is no decree against the third defendant, because he died during the pendency of the suit, and his representatives were not brought on the record. The question in controversy is, whether the suit as framed is maintainable against the fourth and fifth defendants. It is clear that as against the first two defendants, the claim is founded on a breach of contract; as representatives of the original purchaser, they are liable for the balance of price due to the extent of the assets in their hands. In so far as the fourth and fifth defendants are concerned, the claim is founded on the allegation, and the allegation has been found true by the Small Cause Court Judge, that while Gour Basna was still alive, they fraudulently took possession of his goods, in collusion with the first defendant, in satisfaction of a pretended claim against Gour. On behalf of the plaintiff, this claim has been sought to be supported on the analogy of the principle whereby executors de son tort are made liable when they interfere with the estate of a deceased person, and reference has been made to the decision of the Madras High Court in the case of Magaluri Gurudiah v. Narayana Rungiah 3 M. 339. In our opinion, the principle invoked, of which application may be found in Nathuram v. Kutti Haji 20 M. 446; Jogender Narain v. Temple 2 Ind. Jur. (N.S.) 234 and Kshitish Chandra v. Radhica Mohan 35 C. 276 : 3 M.L.T. 147 : 12 C.W.N. 237 is of no possible assistance to the plaintiff; the fourth and fifth defendants cannot, by any stretch of language, be deemed executors in anticipation. The plaintiff cannot, further, succeed on the footing that there was privity of contract between him and these defendants; nor can he succeed on the theory that in the events which have happened, he had a lien on the goods sold. Under Section 95 of the Indian Contract Act, unless a contrary intention appears by the contract, a seller has a lien on sold goods as long as they remain in his possession and the price or any part of it remains unpaid. Under Section 96, where, by the contract, the payment is to be made at a future date, but no time is fixed for the delivery of the goods, the seller has no lien and the buyer is entitled to a present delivery of the goods without payment; but if the buyer becomes insolvent before delivery of the goods, or if the time appointed for payment arrives before the delivery of the goods, the seller may retain the goods for the price. It is clear, therefore, as was explained by Mr. Justice Bayley in Bloxam v. Sanders 7 D. & Rule 396 : (1825) 4 B. & C. 941 : 23 R.R. 525 and New v. Swain (1828) D. & L. 193 : 34 R.R. 767 where goods have been sold on credit and possession has been delivered to the purchaser, the title vests completely in him and the vendor has no lien on the goods sold. In the case before us, the goods were sold on credit; so far as we can gather, no time was fixed for payment of the price; the purchaser obtained possession of the goods. If thereafter the goods were unlawfully taken away from the custody of the purchaser by the fourth and fifth defendants, the plaintiff is not entitled to hold these defendants directly responsible for his claim. Whether after he has obtained a personal decree against the representatives of the purchaser, he may be in a position to pursue the goods in the hands of the fourth and fifth defendants in a proceeding properly framed for the purpose, on the allegation that they really constitute part of the estate of the deceased purchaser, is a question which obviously does not arise for consideration in the suit as framed; nor indeed can a declaration in that behalf be granted by a Court of Small Causes.
2. The result is that this Rule is made absolute and the decree of the Small Cause Court Judge against the petitioners set aside. The petitioners are entitled to their costs both here and in the Court below. We assess the hearing fee in this Court at one gold mohur.