TMI Blog1928 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1898) and in the matter of a reference to arbitration, etc., Nos. 32 to 38 of 1921. The warrants were executed and goods seized and defendants paid to the Sheriff, under protest, the sum of ₹ 26,220-7-1 for debt and Sheriff's costs to obtain release of their goods, and, on the 15th April, the said sum was paid by him into Court to the credit of Nos. 32-38 of 1921 as aforesaid. 3. On 5th April, defendants had instituted Suit No. 1008 of 1921 against plaintiffs and obtained an injunction restraining them from withdrawing the aforesaid sum from the Sheriff or from Court, and on 21st an order was made by Greaves, J., that that suit and the seven arbitration matters aforesaid should be amalgamated, and that, without prejudice to the right of contention of the defendants, on the plaintiffs giving security and undertaking to pay interest in the event of the suit being decreed in favour of the defendants, the aforesaid sum then standing to the credit of the said arbitration matters should be paid out to the plaintiffs. 4. By their plaint in that suit, defendants alleged that they had always been ready and willing to take delivery of the goods, that the resale was bogu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract and a genuine resale, that the price was reasonable, that the loss was sustained by the sellers by reason of the breach, and that the awards had not been procured by fraud. Consequently, as the sellers had succeeded upon the chief matters which required the taking of evidence, they made no order as to costs, but ordered the sellers (the present plaintiffs) to repay to the defendants the aforesaid sum of ₹ 26,220-7-3 with interest in accordance with the order of Greaves, J. 9. Thereupon, on 22nd March 1928 the present suit 639 of 1928 was instituted. By their plaint plaintiffs claim the sum of ₹ 25,016-3-9, as damages for breach of the contract already referred to, and they allege that they realized the said sum by enforcing the aforesaid awards, and are entitled to retain it by reason of their right of appropriation as creditors of the defendants. They also say that their original cause of action remained suspended from the date of the awards or of the filing thereof or of the execution proceedings up to the date of the judgment of the Court of appeal, that alternatively a fresh cause of action for the same amount arose in consequence of that judgment, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the section, because the suit was decreed in favour of the buyers, who were not therefore in a position to appeal against the specific findings, and the sellers being defendants in the suit were not in a position to ask for a decree. Further, I doubt whether these findings were necessary for the determination of the appeal. However that may be, I have heard the evidence over again and have come to the same conclusion. I do not propose to discuss for a third time evidence which has been dealt with at length on two previous occasions. It is sufficient for me to say that I am satisfied upon the evidence that the plaintiffs had the goods and were ready and willing to deliver them, that the defendants were not ready and willing and failed to take delivery that no extension of time was given for taking delivery, that there was a genuine resale, that the sum realised was reasonable and at the market rate, and that plaintiffs suffered the loss alleged in consequence of defendant's said breach of contract. 14. But Section 11, Civil P.C. is not exhaustive of the circumstances in which an issue is res judicata. Upon general principles of law, no issue ought to be twice litigated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. In that suit, the present defendants then plaintiffs by an amendment of their plaint, made four years after the institution of the suit, themselves raised all the issues of fact regarding the contract and its breach, which were subsequently decided in favour of the present plaintiffs . That proceeding, therefore, was, to that extent, founded upon the same cause of action as in the present suit. But the appeal Court owing to the form of the suit, had no jurisdiction to give effect to their decisions of fact in favour of the present plaintiff's, by decreeing the amount due to thorn as a result of the breach of contract. 18. The argument for the plaintiff is put in two ways. Either that, in computing the period of limitation, the time during which they, were prosecuting the proceedings in suit 1008, which was amalgamated with the execution proceedings, ought to be excluded, or that their right of action was extinguished when they executed the awards, revived when the Court of appeal ordered them to refund the money; or in other words, their cause of action accrued at the time when the awards having been set aside the defendants' obligation to pay damages revived, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim any benefit from acts of her own, which she ought from the beginning to have known were illegal or defective, or she could at any time have sued or abided the result, so saving her time. 21. On appeal to the Privy Council, their Lordships said that it was perfectly clear that the cause of action accrued at the time at which, the sale having been set aside, obligation to pay this money revived, that upon the fair construction of Section 32 of that Act the time had really not run; that because, when the zemindar pursued the remedy which was' clearly competent to her if it had been regularly pursued, she inadvertently omitted one of the formalities prescribed by the Act, she could not in bringing the suit be said to be seeking to take advantage of her own wrong, and that it was clear that until the sale had been finally set aside she was in the position of a person whose claim had been satisfied, and that her suit might have been successfully met by a plea to that effect. 22. It will be observed that there is a curiously close analogy between the facts and the arguments on both sides in that, and the present case. The main distinction is that in that case the patnidars ..... 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