Abdul Latif vs Durgah Committee

Nigam, J.C.

This second appeal is directed against the judgment and decree of the learned District Judge, Ajmer in Civil First Appeal No. 89 of 1945.

The facts of the case briefly are that Dewan Sharfuddeen Ali Khan was the Sajjadah Nashin of Durgah Khwaja Moinuddin Chisti at Ajmer. He executed a deed in favour of Abdul Latif and Fazal Hussain transferring to them all his rights in two ''degs'' at the Durgah. This deed was executed on 17-4-1920. Dewan Sharfuddeen Ali Khan died on 2-12-1922. Then a dispute arose between the Durgah Committee and Abdul Latif and Fazal Hussain as to whether Abdul Latif and Fazal Hussain were entitled to any rights in the two ''degs'' under the agreement dated 17-4-1920 after the death of Dewan Sharfuddeen Ali Khan. In dispute there was an agreement between Fazal Hussain and Abdul Latif on the one hand and the Durgah Committee on the other. The Durgah Committee undertook to continue payments on account of the rights of the two ''degs'' to Abdul Latif and Fazal Hussain on their executing an indemnity bond in favour of the Durgah. Such an indemnity bond was executed on 20-1-1924. The agreement is marked Ex. P/1.

Syed Aley Rasul, the successor-in-interest of Dewan Sharfuddeen Ali Khan filed Civil Suit No. 46 of 1926 for a declaration of his rights in the two ''degs'' and for a decree in respect of the dues upto the date of that suit. The final decree in this suit was passed on 31-10-1944. In the meantime, Syed Aley Rasul had transferred his rights in the two ''degs'' in favour of Brahma Dutt now respondent No. 4. Subsequently Brahma Dutt filed Civil Suit No. 358 of 1935 claiming a decree on account of ''deg'' rights for the years 1926-31 against the Durgah Committee, Fazal Hussain and Abdul Latif. The suit was decreed on 23-12-1940 against the Durgah Committee alone and was dismissed against defendants Nos. 2 and 3. On 27-11-1941 the Durgah Committee paid a sum of Rs. 1,276/- in satisfaction of the decree granted against it. Subsequently the suit out of which the present second appeal arises that is Civil Suit No. 114 of 1943 was filed in the Court of the Sub-Judge, First Class, Ajmer, on 19-4-1943 claiming a decree for Rs. 1,360/3/6 The amount claimed was Rs. 1,276/-/- on account of payment in satisfaction of the decree, Rs. 83/8/6 on account of costs incurred in the suit filed by Brahma Dutt and -/11/- probably on account of legal notices. The suit was decreed by the learned Sub-Judge and Civil Appeal No. 89 of 1945 was preferred in the Court of the District Judge. The learned District Judge by his order dated 19-9-1949 remitted the following issue to the trial Judge for a finding:

Did the Durgah Committee pay Rs. 1037/8/- to Abdul Latif and to Fazal Hussain towards the ''deg'' rights as alleged by them for the period in suit?

The appeal was disposed of by order dated 8-4-1950 and it was dismissed with costs. Against that judgment and decree, Abdul Latif who had filed the appeal before the District Judge has come up in second appeal.

In this appeal I have heard the learned counsel for the appellant and the learned counsel for respondents 1 and 3. Respondents 2 and 4 are absent despite service and the appeal has been heard ex parte against them.

The learned counsel for the appellant has urged that the suit was barred by limitation. The learned counsel for respondent No. 1 has referred me to Art. 83 of Schedule I to the Indian Limitation Act. This article reads:

Upon any other contract to indemnify. Three years. When the plaintiff is actually damnified.

There is no doubt that it is the date of the actual payment from which the limitation is to run. I am, accordingly, unable to agree with the learned counsel that the suit was barred by limitation.

The next point urged by the learned counsel is that Brahma Dutt''s suit was decreed on the basis of an acknowledgment given by the Durgah Committee. The learned counsel urges that but for this acknowledgment the suit would have been barred by limitation. It is suggested that as the Durgah Committee had incurred the liability by its own action the right to refund under the indemnity bond would not be available to the plaintiff. The learned counsel is, however unable to support his contention with any law or any ruling. I am, therefore, unable to agree with the learned counsel. I am of opinion that once a payment has been made, the indemnifier is liable to make it good under the terms of the indemnity bond executed by him and the question whether the limitation was extended or the payment was made in respect of a time barred liability will not avail the surety.

The next point urged by the learned counsel is that the order of remand made by the learned District Judge was illegal. The learned counsel has relied on -- Kalika Pande Vs. Ram Autar Pande and Another, That, however, appears to be a case in which an issue had been struck by the trial court. In the present case, the admitted position is that no issue was struck on the question of actual payment to Syed Abdul Latif and Fazal Hussain by the Durgah Committee. The learned trial Judge appears to have been under the impression that the judgment of the case Brahma Dutt v. Durgah Committee and two others was conclusive evidence on the point. Apparently under that view no issue was struck on the point. The parties also do not appear to have requested that an issue on this be framed. The learned District Judge was at opinion that such an issue ought to have been framed. I am of opinion that the learned District Judge was fully justified by the provisions of Order 41, Rule 25 in framing an issue and remanding it for a finding.

The last point urged by the learned counsel is that in equity a decree should have been passed against the appellant in respect of the amount paid to him. That would have been the position if Abdul Latif and Fazal Hussain had executed separate indemnity bonds. As they executed a joint bond, the liability will continue joint. Therefore, it was not necessary to specify the liability of each person as the liability was joint and several in any case.

No other point has been urged before me.

I, therefore, see no force in this second appeal and dismiss it with costs (one set).