JUDGMENT
M.J. Rao, C.J.
(1) The application for exemption is allowed subject to just exceptions. Rfa (OS) 14/95 & C.Ms 1226 & 1227 /95
(2) This is an appeal by the defendants(vendors) against the Judgment of the learned Single Judge decreeing the suit for refund of Rs. 3 lakhs paid by the (purchasers) respondents/plaintiffs to the appellants under a contract of sale. Learned single Judge awarded decree for the said amount and also pendente lite interest.
(3) The suit was filed under Order 37, Civil Procedure Code . The agreement was dated 22.2.1990 and was executed by the appellants in favor of the respondents for sale of immovable property. The appellants received a sum of Rs. 3 lakhs under the contract. The time for performance was 7 months. If a suit for specific performance was to be filed, it should have been filed on or before 21.2.1993. But the present suit was one for refund of money and was filed on 10.7.1994. This suit for refund came to be filed under the following circumstances.
(4) The land was acquired under Section 4(1) of the Land Acquisition Act on 6.6.1991 and a declaration under Section 6 was issued on 18.12.1991. The award was passed on 2.4.1993. The entire compensation was received by the appellants and other co-owners of the property. The learned Single Judge had earlier in another case held that a suit under Order 37, Civil Procedure Code . could not be filed against the legal representatives of a person, who was liable to pay money. But in the present case, when the appellants sought to rely on the same, the said Judgment was distinguished by the learned Judge on the ground that in so far as the principal amount was concerned, it was received by the vendor. On the footing that the claim for interest which accrued as against the legal representatives may not be decreed, the plaintiffs, who had sought for Rs.3 lakhs plus interest, in all Rs. 5,36,000.00 and odd agreed to forego the interest that accrued. In the result, the suit was decreed for Rs. 3 lakhs with pendente lite interest.
(5) The earlier Judgment of the same learned Judge wherein he had held that a suit does not lie under Order 37 Civil Procedure Code . against the legal representatives of a debtor was set aside by us in an appeal filed by the plaintiffs in that suit vide our Judgment in Fao (OS) 2 of 1995 decided on 8.9.1995. Therefore, the point that a suit under Order 37 Civil Procedure Code . does not lie against the legal representatives does not survive. A suit under Order 37 Civil Procedure Code ., we have held in our Judgment, lies against the original borrowers or against their legal representatives or if there was more than one borrower, against remaining borrowers and the legal representatives of the deceased borrowers. Hence that plaint is no longer available to the appellants. Be that as it may, in the interregnum the appellants had the benefit of the plaintiffs foregoing nearly Rs. 2.36 lakhs, which accrued to them as interest prior to suit.
(6) A contention was raised before us that inasmuch as the plaintiffs were prepared to accept Rs. 3 lakhs the plaint ought to have been returned because the pecuniary jurisdiction of this Court applies only in cases where the value is more than Rs. 5 lakhs. Firstly, the plaint stands as it stood when it was filed. Merely because during the course of the trial or arguments, plaintiffs conceded that the Court need not decide an issue relating to a relief, the pecuniary value of the suit does not come down. Secondly, from the impugned Judgment no such contention as to pecuniary jurisdiction appears to us to have been raised before the learned Single Judge. It is well settled vide Kiran Singh and Others vs. Chaman Paswan and Others that objections relating to territorial jurisdiction and pecuniary jurisdiction cannot be permitted to be raised for the first time in an appeal unless prejudice is shown. Or else, such objection must be deemed to have been waived.
(7) Learned counsel for the appellants then sought to raise a contention that interest pendente lite should not have been granted inasmuch as the plaintiffs had given up interest. This contention again cannot be accepted because what has been given up by the plaintiffs is the interest that accrued on the principal sum till the date of suit. Even that sum they were unfortunately prepared to forego because of the earlier Judgment of the learned Single Judge holding that Order 37, Civil Procedure Code . was not applicable to proceedings taken against the legal representatives which judgment has since been reversed. We are,therefore, of the view that the learned Single Judge was perfectly justified in exercising discretion to award interest pendente lite under section 34 CPC.
(8) The last objection of the learned counsel for the appellants is that the suit is barred by time. This contention was rejected by the learned Single Judge. It is argued that the notification under Section 4(1) was issued in this case on 6.6.1991, and thereupon the suit contract got frustrated, that the suit for refund had to be filed on or before 5.6.1994, and that the suit filed on 9.7.1994 was barred by time. In our view, the contract did not get frustrated merely on the passing of a notification under Section 4(1) of the Land Acquisition Act. The procedure prescribed under the Land Acquisition Act permits objections to be filed to Section 4(1) notification and in those proceedings the notification could be withdrawn by the Government. It is only thereafter that Section 6 declaration is made. In this case, the suit is within 3 years from the date of Section 6 declaration which was made on 18.12.1991. Another way of looking at the problem is that the title does not vest in the Government until the award is passed under Section 11 and the possession is taken. It is only then that the title vests in the Government free of all encumberances. This is clear from Section 16 of the Land Acquisition Act. In this case, even going by the date of Section 6 declaration , the suit is very much in time. Going by the Award, there was time till 2.4.1996. The suit was, therefore, within time.
(9) For the aforesaid reasons, there is no merit in the appeal. Accordingly, the appeal is dismissed.