High Court Division :
(Civil Appellate Jurisdiction)
Sheikh Abdul Awal J
Shahidul Karim J
Hafizur Rahman (Md)
……………..Plaintiff-Appellant
vs
Abdur Rahman Miah and
another. ………………
…..Defendant – Respondents
Judgment
December 15th, 2015
Specific Performance of Contract
In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved.
Law is well settled that where in any contract, time is intended to be of the essence of the contract. it is not sufficient to find whether there was such intention or not, but it is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract. ……………(18)
AJ Mohammad Ali with Golam Mohammad Chowdhury, Advocates-For the Appellant.
AQM Shafiullah, Advocate-For the Respondent No. 1
Ahmed Nowshed Jamil, Advocate-For the Added
Respondent No. 3
Judgment
Sheikh Abdul Awal J : This First Appeal is from judgment and decree dated 31-7-2011 (decree signed on 7-8-2011) passed by the learned Joint District Judge, 1st Court, Dhaka in Title Suit No. 270 of 2007 dismissing the suit.
2. The relevant facts briefly are that the appellant herein as plaintiff brought the aforesaid
Title Suit No. 270 of 2007 in the Court of Joint District Judge 1st Court, Dhaka impleading the respondent No. I as defendant No. I and another on the averments that the defendant No.1, Abdur Rahim Miah entered into an agreement with the plaintiff to sell the property of Mouza-Baunia, PS Uttara, District Dhaka at a total consideration of Taka 10,00,000. In terms of agreement the plaintiff has paid Taka 5,00,000 in presence of the witnesses as earnest money and defendant No.1 upon receiving the said earnest money executed bainapatra with the stipulation that he would execute the deed of sale within 6(six) months from the date of agreement but the defendant No. I did not execute and register the kabala within 6(six) months inspite of tender of the balance consideration money. In this backdrop the plaintiff issued a legal notice on 21-1-2007 to the defendant No.1 asking to execute and register the sale deed on taking the balance consideration money but the defendant No. I demanded additional amount of Taka 5,00,000 to the plaintiff and hence, the suit for specific performance of contract.
3. The defendant No.1 respondent entered appearance in the suit and filed written statement contending, inter-alia, that the suit is barred by limitation inasmuch as the plaintiff having failed to file the suit within 1 (one) year from the date of registration of the bainapatra and, as such, the suit is liable to dismissed. It is further contended that the defendant No. I was ready to execute and register the kabala although the plaintiff-appellant on various pretexts did not come forward to perform his part.
4. The learned Joint District Judge, 1st Court, Dhaka upon considering the pleadings of the parties framed the following issues for determination:
i) Whether the suit is maintainable in its present form and manner?
ii) Whether there was any bainapatra executed between the plaintiff and defendant No.1 with regard to the suit land?
iii) Whether the defendant paid balance consideration money within time as mentioned in the bainapatra?
iv) Whether the plaintiff is entitled to get any other reliefs?
5. The trial Court on consideration of the evidence on record found that the plaintiff having failed to perform his part and dismissed the suit by the impugned judgment and decree dated 31-7-2011.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and decree dated 31-7-2011 the present plaintiff-appellant preferred this appeal.
7. Mr AJ Mohammad Ali, the learned Advocate appearing on behalf of the plaintiff-appellant submits that the trial Judge erred in law in dismissing the suit without properly considering the facts and circumstances of the case and the case made out by the plaintiff-appellant and, as such, the same has occasioned failure of justice. The learned Advocate further submits that it is on record that there was no mutation in the name of defendant No. I, who took Taka 10,000+10,000= 20,000 on two occasions (Ext-5) from the plaintiff and by spending the said money got mutation in his name on 5-12-2006 and the defendant No. 1 most illegally beyond the terms of bainapatra claimed additional amount of Taka 5,00,000 to execute and register the kabala ignoring the terms of bainapatra as well as the legal notice issued by the plaintiff-petitioner and in such view of the matter the finding of the trial Judge that the plaintiff could not perform his part is perverse being contrary to the evidence and materials on record. Mr Mohammad Ali further relying on the decisions reported in 8 DLR 616, Vol. 20, the Calcutta Weekly Notes (Privy Council) 744 submits that the proposition of law is by now well settled by a good number of authorities that time is not essence of a contract and when a party to a contract promises to do a certain thing within a specified time and fails to do anything at or before the specified time the contract should not fail if the intention of the parties found good and in this case there is nothing on record to suggest that the plaintiff willfully disobeyed the terms of contract rather, it is on record that the defendant No. I violated the terms of contract in claiming additional amount of Taka 5,00,000.
8. Mr AQM Shafiullah, the learned Advocate appearing on behalf of the respondent No.1 supports the impugned judgment and contends that the learned Joint District Judge was perfectly justified in dismissing the suit on the clear finding that the plaintiff having failed to prove that he was vigilant to get the kabala registered as per terms of bainapatra. He further submits that the suit was barred by limitation inasmuch as it was stipulated in the bainapatra that the defendant would execute the deed of sale within 6(six) months from the date of agreement upon receiving the balance consideration money and admittedly the bainapatra was registered on 23-3-2006 and the plaintiff having failed to perform his part within 6(six) months, the suit was filed on 2-7-2007, that is, beyond the stipulated time of 1 (one) year.
9. Mr Ahmed Nowshed Jamil, the learned Advocate appearing on behalf of the added respondent at the very outset adopting the submission of the learned Advocate for the respondent No.1.
10. We have considered the submission of the learned Advocates for both the sides and perused the record. The only material question for consideration in this appeal is, whether the trial Judge was justified in dismissing the suit on the ground that the plaintiff having failed to perform his part as per terms of bainapatra and, as such, he is not entitled to get a decree for specific performance of contract.
11. On scrutiny of the record. it appears that admittedly the defendant No.1, Abdul Rahim Miah entered into an agreement with the plaintiff to sell his property under Mouza-Baunia, PS Uttara, District Dhaka at a total consideration of Taka 10,00,000 and in terms of agreement the plaintiff has paid Taka 5,00,000 in presence of the witnesses as earnest money and the defendant No. I upon receiving the said earnest money executed bainapatra with the stipulation that he would execute the deed or sale within 6(six) months from the date of agreement.
12. It is found that at the trial the plaintiff side examined in all 3 PWs, the defendant side in all examined 4 DWs and both the parties exhibited some documents to prove their respective cases. PW-l, Md Mizanur Rahman, stated in his evidence that as per in terms of agreement the plaintiff has paid Taka 5,00,000 in presence of the witnesses as earnest money and defendant No. 1 upon receiving the said earnest money executed bainapatra with the stipulation that he would execute the deed of sale within 6(six) months from the date of bainapatra but the defendant No. I did not execute and register the kabala within 6(six) months inspite of tender of the balance consideration money. This witness also stated that the plaintiff issued a legal notice on 21-1-2007 to the defendant No.1 asking to execute and register the sale deed on taking the balance consideration money but the defendant No.1 demanded additional amount of Taka 5,00,000 to the plaintiff. This witness also stated that after execution of bainapatra the possession of the property was handed over to the plaintiff. This witness in his evidence also stated that:
“??? ???????? ??????? ????? ?????? ??? ??-?-?????? ?????? ????????? ? ???? ???? ?????? ??? ??? ????? ???? ????????? ??????? ????? ???????? ??? ??-?-???? ?? ?????? ??-??-?????? ??????? ?? ????? ??? ?? ????? ???? ??????? ???? ???????? ???? ????? ????” ???? ??????? ?? ??? ???????? ???? ?????? ???? : “???? ????? ?????? ??? ??? ??-?-???? ?? ??????? ?????? ????? ?????? (????-?)? ??? ???? ? ???? ???? ?????? ????? ??????? ???? ??????? ??? ?????? ????? ?????? (????-?)? ??? ???? ?????? ??? ?????? ( ?????????) ????? ?????? (????-?)? ??????? ???? ??? ???? ??? ?????? ?? ????? ????? ?? ????? ???? ????? ??? ???? ??? ?????? ????? ?????? (????-?)? ??? ???? ?????? ????????? ??? ?????? ????”
13. PW-2, Barkat Ali and PW-3, Md Wahab Khan in their respective evidence corroborated the evidence of PW-I in respect of all material particulars.
14. In this case defendant No.1 himself was examined as DW-I, who in his cross-examination stated that: Avgvi bv‡gi RS bvgRvix gvgjv bs-19260/2006 ???-?-??-???? ???? ??? ??? ???? ??? ??? ??? ?????/???? ??? ?-??-???? ?? ???? ???? ???? ?? ?? ??? ??? ??????? DW-2, Md Rafiqul Islam, son of defendant No.1, stated in his cross-examination that : ???? ?? ??????? ????? ??????? ????? ??? ?????????? ??? ?????? ??? ??? ??? ??? ??? ?????? ????? ???? ???? ??? ??? ??? ??? DW-3, Md Faruque, son of defendant No .1, stated in his deposition that time limit of bainapatra was 6(six) months and within the 6(six) months the plaintiff did not pay the rest consideration money of bainapatra.
15. On a careful perusal of the evidence of PWs and DWs together with the exhibited documents, it does not appear that the plaintiff failed to perform his part as per terms of bainapatra in question Rather, it appears that plaintiff made several offers to get the kabala registered but the defendant No. I deferred the matter as defendant No.1 executed bainapatra on 23-3-2006 in favour of the plaintiff while his name was not mutated of the land covering bainapatra in question and on 5-12-2006 the defendant mutated his name through Mutation Case No. 19260 of 2006 and finally, the defendant opposite party No. I refused to execute and register sale deed unless the plaintiff agreed to pay 5 Lac in addition to the balance consideration money.
16. Now, we like to quote hereunder the relevant portion of the legal notice issued by the defendant No.1 to the plaintiff on 15-1-2007 for having a better view of the dispute in question. which reads as follows:
”???????? ????? ?????? ????????? ????? ????? ??,??,??? ????? ??????? ????????? ????? ????? ??? ???? ???? ??????? ?? ???? ???? ????????? ??????? ????? ????? ?????? ?????? ???? ????? ??????? ???? ??? ???? ???? ????????? ?????? ????? ???? ????? ???? ???? ???? ?????? ????? ????? ??????? ?????? ?????? ?? ????? ????? ?????? ??? ???? ??, ???? ???? ????? ????????? ?? ????? ????? ????? ?????? ????????? ??????? ????? ????? ??????? ????? ???? ?????? ????? ??? ???? ???? ??????? ???????”
17. From the above, it transpires that the defendant No.1 by sending notice to the plaintiff claimed 5 Lac in addition to the balance consideration money. In any view of the matter, having regard to the fact as aforesaid, the trail Court was not justified in dismissing the suit on the finding that the plaintiff failed to perform his part of the contract (bainapatra in question).
18. Law is well settled that where in any contract, time is intended to be of the essence of the contract, it is not sufficient to find whether there was such intention or not, but it is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract. In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved.
19. As we have already indicated that in this case the plaintiff petitioner has successfully proved his readiness and willingness to pay the balance of the consideration money within the stipulated period of time, there being no controversy regarding the failure of the defendant respondent No.1 to perform his part within the period of the contract (bainapatra in question), the suit for specific performance of the contract cannot fail.
20. In view of the discussions above we are constrained to hold that the learned Joint District Judge misconstrued and misinterpreted the evidence on record and came to his conclusion abruptly without property shifting the evidence on record and, as such, the impugned judgment and decree are liable to be set aside.
21. In the result, the appeal is allowed without any order as to cost. The impugned judgment and decree dated 3-7-2011 passed by the learned Joint District Judge, 1st Court, Dhaka in Title Suit No. 270 of 2007 are set-aside and that the suit is decreed. The defendant-respondent No.1 is directed to execute and register the sale deed within 90(ninety) days in favour of the plaintiff-appellant, otherwise the plaintiff-appellant is at liberty to get the sale deed through the Court in accordance with law.
22. Since the appeal is allowed, the Rule being Civil Rule No.894 (F) of 2011 is hereby disposed of in the light of the operating portion of the judgment passed in the appeal.
Let a copy of this judgment along with the lower Court’s record be sent down at once.
(Civil Appellate Jurisdiction)
Sheikh Abdul Awal J
Shahidul Karim J
Hafizur Rahman (Md)
……………..Plaintiff-Appellant
vs
Abdur Rahman Miah and
another. ………………
…..Defendant – Respondents
Judgment
December 15th, 2015
Specific Performance of Contract
In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved.
Law is well settled that where in any contract, time is intended to be of the essence of the contract. it is not sufficient to find whether there was such intention or not, but it is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract. ……………(18)
AJ Mohammad Ali with Golam Mohammad Chowdhury, Advocates-For the Appellant.
AQM Shafiullah, Advocate-For the Respondent No. 1
Ahmed Nowshed Jamil, Advocate-For the Added
Respondent No. 3
Judgment
Sheikh Abdul Awal J : This First Appeal is from judgment and decree dated 31-7-2011 (decree signed on 7-8-2011) passed by the learned Joint District Judge, 1st Court, Dhaka in Title Suit No. 270 of 2007 dismissing the suit.
2. The relevant facts briefly are that the appellant herein as plaintiff brought the aforesaid
Title Suit No. 270 of 2007 in the Court of Joint District Judge 1st Court, Dhaka impleading the respondent No. I as defendant No. I and another on the averments that the defendant No.1, Abdur Rahim Miah entered into an agreement with the plaintiff to sell the property of Mouza-Baunia, PS Uttara, District Dhaka at a total consideration of Taka 10,00,000. In terms of agreement the plaintiff has paid Taka 5,00,000 in presence of the witnesses as earnest money and defendant No.1 upon receiving the said earnest money executed bainapatra with the stipulation that he would execute the deed of sale within 6(six) months from the date of agreement but the defendant No. I did not execute and register the kabala within 6(six) months inspite of tender of the balance consideration money. In this backdrop the plaintiff issued a legal notice on 21-1-2007 to the defendant No.1 asking to execute and register the sale deed on taking the balance consideration money but the defendant No. I demanded additional amount of Taka 5,00,000 to the plaintiff and hence, the suit for specific performance of contract.
3. The defendant No.1 respondent entered appearance in the suit and filed written statement contending, inter-alia, that the suit is barred by limitation inasmuch as the plaintiff having failed to file the suit within 1 (one) year from the date of registration of the bainapatra and, as such, the suit is liable to dismissed. It is further contended that the defendant No. I was ready to execute and register the kabala although the plaintiff-appellant on various pretexts did not come forward to perform his part.
4. The learned Joint District Judge, 1st Court, Dhaka upon considering the pleadings of the parties framed the following issues for determination:
i) Whether the suit is maintainable in its present form and manner?
ii) Whether there was any bainapatra executed between the plaintiff and defendant No.1 with regard to the suit land?
iii) Whether the defendant paid balance consideration money within time as mentioned in the bainapatra?
iv) Whether the plaintiff is entitled to get any other reliefs?
5. The trial Court on consideration of the evidence on record found that the plaintiff having failed to perform his part and dismissed the suit by the impugned judgment and decree dated 31-7-2011.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and decree dated 31-7-2011 the present plaintiff-appellant preferred this appeal.
7. Mr AJ Mohammad Ali, the learned Advocate appearing on behalf of the plaintiff-appellant submits that the trial Judge erred in law in dismissing the suit without properly considering the facts and circumstances of the case and the case made out by the plaintiff-appellant and, as such, the same has occasioned failure of justice. The learned Advocate further submits that it is on record that there was no mutation in the name of defendant No. I, who took Taka 10,000+10,000= 20,000 on two occasions (Ext-5) from the plaintiff and by spending the said money got mutation in his name on 5-12-2006 and the defendant No. 1 most illegally beyond the terms of bainapatra claimed additional amount of Taka 5,00,000 to execute and register the kabala ignoring the terms of bainapatra as well as the legal notice issued by the plaintiff-petitioner and in such view of the matter the finding of the trial Judge that the plaintiff could not perform his part is perverse being contrary to the evidence and materials on record. Mr Mohammad Ali further relying on the decisions reported in 8 DLR 616, Vol. 20, the Calcutta Weekly Notes (Privy Council) 744 submits that the proposition of law is by now well settled by a good number of authorities that time is not essence of a contract and when a party to a contract promises to do a certain thing within a specified time and fails to do anything at or before the specified time the contract should not fail if the intention of the parties found good and in this case there is nothing on record to suggest that the plaintiff willfully disobeyed the terms of contract rather, it is on record that the defendant No. I violated the terms of contract in claiming additional amount of Taka 5,00,000.
8. Mr AQM Shafiullah, the learned Advocate appearing on behalf of the respondent No.1 supports the impugned judgment and contends that the learned Joint District Judge was perfectly justified in dismissing the suit on the clear finding that the plaintiff having failed to prove that he was vigilant to get the kabala registered as per terms of bainapatra. He further submits that the suit was barred by limitation inasmuch as it was stipulated in the bainapatra that the defendant would execute the deed of sale within 6(six) months from the date of agreement upon receiving the balance consideration money and admittedly the bainapatra was registered on 23-3-2006 and the plaintiff having failed to perform his part within 6(six) months, the suit was filed on 2-7-2007, that is, beyond the stipulated time of 1 (one) year.
9. Mr Ahmed Nowshed Jamil, the learned Advocate appearing on behalf of the added respondent at the very outset adopting the submission of the learned Advocate for the respondent No.1.
10. We have considered the submission of the learned Advocates for both the sides and perused the record. The only material question for consideration in this appeal is, whether the trial Judge was justified in dismissing the suit on the ground that the plaintiff having failed to perform his part as per terms of bainapatra and, as such, he is not entitled to get a decree for specific performance of contract.
11. On scrutiny of the record. it appears that admittedly the defendant No.1, Abdul Rahim Miah entered into an agreement with the plaintiff to sell his property under Mouza-Baunia, PS Uttara, District Dhaka at a total consideration of Taka 10,00,000 and in terms of agreement the plaintiff has paid Taka 5,00,000 in presence of the witnesses as earnest money and the defendant No. I upon receiving the said earnest money executed bainapatra with the stipulation that he would execute the deed or sale within 6(six) months from the date of agreement.
12. It is found that at the trial the plaintiff side examined in all 3 PWs, the defendant side in all examined 4 DWs and both the parties exhibited some documents to prove their respective cases. PW-l, Md Mizanur Rahman, stated in his evidence that as per in terms of agreement the plaintiff has paid Taka 5,00,000 in presence of the witnesses as earnest money and defendant No. 1 upon receiving the said earnest money executed bainapatra with the stipulation that he would execute the deed of sale within 6(six) months from the date of bainapatra but the defendant No. I did not execute and register the kabala within 6(six) months inspite of tender of the balance consideration money. This witness also stated that the plaintiff issued a legal notice on 21-1-2007 to the defendant No.1 asking to execute and register the sale deed on taking the balance consideration money but the defendant No.1 demanded additional amount of Taka 5,00,000 to the plaintiff. This witness also stated that after execution of bainapatra the possession of the property was handed over to the plaintiff. This witness in his evidence also stated that:
“??? ???????? ??????? ????? ?????? ??? ??-?-?????? ?????? ????????? ? ???? ???? ?????? ??? ??? ????? ???? ????????? ??????? ????? ???????? ??? ??-?-???? ?? ?????? ??-??-?????? ??????? ?? ????? ??? ?? ????? ???? ??????? ???? ???????? ???? ????? ????” ???? ??????? ?? ??? ???????? ???? ?????? ???? : “???? ????? ?????? ??? ??? ??-?-???? ?? ??????? ?????? ????? ?????? (????-?)? ??? ???? ? ???? ???? ?????? ????? ??????? ???? ??????? ??? ?????? ????? ?????? (????-?)? ??? ???? ?????? ??? ?????? ( ?????????) ????? ?????? (????-?)? ??????? ???? ??? ???? ??? ?????? ?? ????? ????? ?? ????? ???? ????? ??? ???? ??? ?????? ????? ?????? (????-?)? ??? ???? ?????? ????????? ??? ?????? ????”
13. PW-2, Barkat Ali and PW-3, Md Wahab Khan in their respective evidence corroborated the evidence of PW-I in respect of all material particulars.
14. In this case defendant No.1 himself was examined as DW-I, who in his cross-examination stated that: Avgvi bv‡gi RS bvgRvix gvgjv bs-19260/2006 ???-?-??-???? ???? ??? ??? ???? ??? ??? ??? ?????/???? ??? ?-??-???? ?? ???? ???? ???? ?? ?? ??? ??? ??????? DW-2, Md Rafiqul Islam, son of defendant No.1, stated in his cross-examination that : ???? ?? ??????? ????? ??????? ????? ??? ?????????? ??? ?????? ??? ??? ??? ??? ??? ?????? ????? ???? ???? ??? ??? ??? ??? DW-3, Md Faruque, son of defendant No .1, stated in his deposition that time limit of bainapatra was 6(six) months and within the 6(six) months the plaintiff did not pay the rest consideration money of bainapatra.
15. On a careful perusal of the evidence of PWs and DWs together with the exhibited documents, it does not appear that the plaintiff failed to perform his part as per terms of bainapatra in question Rather, it appears that plaintiff made several offers to get the kabala registered but the defendant No. I deferred the matter as defendant No.1 executed bainapatra on 23-3-2006 in favour of the plaintiff while his name was not mutated of the land covering bainapatra in question and on 5-12-2006 the defendant mutated his name through Mutation Case No. 19260 of 2006 and finally, the defendant opposite party No. I refused to execute and register sale deed unless the plaintiff agreed to pay 5 Lac in addition to the balance consideration money.
16. Now, we like to quote hereunder the relevant portion of the legal notice issued by the defendant No.1 to the plaintiff on 15-1-2007 for having a better view of the dispute in question. which reads as follows:
”???????? ????? ?????? ????????? ????? ????? ??,??,??? ????? ??????? ????????? ????? ????? ??? ???? ???? ??????? ?? ???? ???? ????????? ??????? ????? ????? ?????? ?????? ???? ????? ??????? ???? ??? ???? ???? ????????? ?????? ????? ???? ????? ???? ???? ???? ?????? ????? ????? ??????? ?????? ?????? ?? ????? ????? ?????? ??? ???? ??, ???? ???? ????? ????????? ?? ????? ????? ????? ?????? ????????? ??????? ????? ????? ??????? ????? ???? ?????? ????? ??? ???? ???? ??????? ???????”
17. From the above, it transpires that the defendant No.1 by sending notice to the plaintiff claimed 5 Lac in addition to the balance consideration money. In any view of the matter, having regard to the fact as aforesaid, the trail Court was not justified in dismissing the suit on the finding that the plaintiff failed to perform his part of the contract (bainapatra in question).
18. Law is well settled that where in any contract, time is intended to be of the essence of the contract, it is not sufficient to find whether there was such intention or not, but it is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract. In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved.
19. As we have already indicated that in this case the plaintiff petitioner has successfully proved his readiness and willingness to pay the balance of the consideration money within the stipulated period of time, there being no controversy regarding the failure of the defendant respondent No.1 to perform his part within the period of the contract (bainapatra in question), the suit for specific performance of the contract cannot fail.
20. In view of the discussions above we are constrained to hold that the learned Joint District Judge misconstrued and misinterpreted the evidence on record and came to his conclusion abruptly without property shifting the evidence on record and, as such, the impugned judgment and decree are liable to be set aside.
21. In the result, the appeal is allowed without any order as to cost. The impugned judgment and decree dated 3-7-2011 passed by the learned Joint District Judge, 1st Court, Dhaka in Title Suit No. 270 of 2007 are set-aside and that the suit is decreed. The defendant-respondent No.1 is directed to execute and register the sale deed within 90(ninety) days in favour of the plaintiff-appellant, otherwise the plaintiff-appellant is at liberty to get the sale deed through the Court in accordance with law.
22. Since the appeal is allowed, the Rule being Civil Rule No.894 (F) of 2011 is hereby disposed of in the light of the operating portion of the judgment passed in the appeal.
Let a copy of this judgment along with the lower Court’s record be sent down at once.
