1. This is a Rule calling on the opposite party to show cause why the judgment and decree complained of should not be set aside and such other order made as to this Court may seem fit and proper.
2. The plaintiff who is the petitioner before us brought this suit to recover a sum of Rs. 147 with interest and costs. The plaintiff's allegations were that he advanced a sum of Rs. 120 for marriage expenses to the two defendants, who are brothers; on their executing a bond, by which they agreed in consideration of the sum advanced that one of them should always work for the plaintiff. Interest was agreed on at 8 annas per Rs. 20, i.e. 2 1/2 per cent, per mensem, and the sum of three rupees due on this account each month was not to be paid in cash but was to be liquidated by the services of one or other of the two brothers whom the plaintiff undertook to feed but not to clothe. Both the lower Courts have held that the bond was a slavery bond and not enforceable as being opposed to public policy. The suit has been dismissed on the pleadings without any evidence being taken.
3. We are doubtful whether the lower Courts were right in holding that the terms of this agreement between the parties were such that it cannot be enforced on the ground of being opposed to public policy. If one of the brothers alone had executed the contract, the case of Ram Sarup Bhagat v. Bansi Mandar 30 Ind. Cas. 955 : 42 C. 742 : 19 C.W.N. 1118 cited by them, would support their view. But in the present case while one brother was working for the plaintiff it would be possible for the other brother to earn money elsewhere and in course of time pay off the principal debt and release them both. But it is unnecessary to discuss this aspect of the case at greater length. In any case the contract for service is not one that can be specifically enforced and even if the agreement be opposed to public policy yet when the facts have been fully ascertained, it may be that on the equitable principles embodied in Sections 38 and 41 of the Specific Relief Act, the plaintiff may be found entitled to restitution of the whole or some part of the money advanced. It was held by their Lordships of the Privy Council in Mohori Bibee v. Dharmodas Ghose 30 C. 539 at p. 549 : 30 I.A. 114: 7 C.W.N. 441 : 5 Bom. L.R. 421 : 8 Sar. P.C.J. 374 that these sections give a discretion to the Court when under the circumstances of the case justice requires the return of money paid' in respect of a transaction held to be void. We may also refer to the case of Bakshi Das v. Nadu Das 1 C.L.J. 261 where following the decisions of this Court in Juggessur Chuckerbutty v. Panchcowree Chuckerbutty 14 W.R. 154 : 5 B.L.R. 395 and Ram Chand Sen v. Audaito Sen 10 C. 1054 : 5 Ind. Dec. (N.S.) 704. it was held that a suit was maintainable for the recovery of the sum actually paid pursuant to an agreement which was opposed to public policy.
4. We accordingly make this Rule absolute and direct that the case be sent back to the Munsif of Gauhati to be tried according to law. As the opposite party did not appear we make no order as to costs.