JUDGMENT
1. This is an application by the plaintiffs to set aside a decree of dismissal made by the Court below. The plaintiffs agreed to purchase certain properties from the defendant. The latter, however, in breach of this agreement, sold the property to other persons, with the result that the plaintiffs were obliged to bring a suit for specific performance of the contract. That suit was decreed; but the defendant did not execute the conveyance as directed by the decree; consequently, the Court executed the conveyance on behalf of the vendor. The plaintiffs, now seek to recover from the defendant by way of mesne profits, a certain sum of money which he alleges is payable by the defendant under the terms of the conveyance. The Small Cause Court Judge has dismissed the suit on the ground that it cannot properly be described as one for mesne profits–a view in support of which plausible arguments may possibly be advanced. But obviously the ground upon which the suit has been dismissed is essentially of a technical character, because the rights of the parties should be determined upon the allegations made in the plaint which clearly disclose a cause of action. The allegations in the plaint are to the effect that if the defendant collected either himself or by any agent, the profits of the disputed properties, between the date of the execution of the agreement for sale and the date of the execution of the conveyance, the plaintiffs would be entitled to receive the same. Now the plaintiffs contend that the defendant has collected profits of the properties in the interval: such profits have been received partially by the vendor himself and partially by the persons in whose favour he executed the conveyances. The plaintiffs are, therefore, clearly entitled to maintain this suit.
2. It has been urged, however, on behalf of two of the defendants that the suit is barred by the provisions of either Section 47 of the Code of Civil Procedure or Article 31 of the second Schedule of the Provincial Small Cause Courts Act. There is no substance, however, in either of these contentions. In support of the first point, it has been argued that the claim now put forward ought to have been put forward in the proceedings in execution of the decree made in the suit for specific performance. But it is difficult to follow the reasoning upon which this contention is based. The suggestion apparently is that as the conveyance was executed as directed by the Court, the rights of the parties thereunder should also have been determined in execution of the decree. This position cannot clearly be maintained. The decree merely directed the defendant to execute the conveyance; and it further provided that if he failed to execute it, the Court would execute it on his behalf. As soon as the conveyance was executed by the Court nothing further remained to be done in the execution proceedings, and if either of the parties wanted to enforce his rights under the conveyance, a separate suit was clearly maintainable. The first ground, therefore, fails.
3. In so far as the second point is concerned, Article 31 has clearly no application. That article excludes from the jurisdiction of the Small Cause Court suits for accounts including a suit by a mortgagor after the mortgage has been satisfied to recover surplus collections received by the mortgagee, and also a suit for the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant. But it cannot be seriously suggested that the defendant has wrongfully received the profits of immovable property belonging to the plaintiff. The profits of the property might be realised by the defendant; in fact, to [provide against that contingency, a provision was inserted in the deed. The title would not vest in the plaintiffs till the conveyance was executed. Hence between the date of the execution of the agreement of sale and the execution of the conveyance, the vendor would be the proper person to collect the profits. But the vendor has agreed that he would re-pay the plaintiffs the profits which he might collect either himself or by his agents or by any other person on his behalf. The suit, therefore, is not for recovery of profits of immovable property wrongfully received by the defendant. It is a suit for recovery of money due to the plaintiffs under the terms of the conveyance executed in their favour by the defendant. In this view, the second ground also cannot be supported.
4. The result is that this Rule is made absolute and the order of the Court below discharged. The case is remanded to the Court below in order that the suit may be re-tried and the sum due to the plaintiffs determined. The petitioners are entitled to the costs of this Rule. We assess the hearing fee at two gold mohurs.
