DHANIKACHALA PILLAI Vs. A RAGHAVA REDDIAR

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed a suit for recovery of a sum of Rs. 1242/with future interest and costs charged on the suit property. The suit was dismissed by the learned District Munsif of Vellore. An appeal preferred by the plaintiff was also unsuccessful. Hence this second appeal.

(2.) THE plaintiff sold the suit property to the first defendant and to one Namadeva reddiar under Ex. B-1 dated 7-6-1951 for Rs. 3000. Out of that sum Rs. 2000 was paid in cash and for the balance of Rs. 1000 defendants 1 and 2 executed a promissory note in favour of the plaintiff. According to the plaintiff, the suit promissory note was lost and he brought the suit against the defendants an the original cause of action and prayed for a charge decree against the property. The first defendant contended that he paid two amounts of Rs. 500/- and Rs. 400 on two different dates and endorsed the payments on the promissory note and that when he wanted to make the third payment and discharge the promissory note the plaintiff was putting off producing the promissory note. The first defendant also pleaded that the moment the plaintiff received the promissory note the original transaction was closed and a fresh contract arose and that the first and second defendants were only sureties for the payment of Rs. 1000 and that the plaintiff could not enforce the vendor's lien. The defendants also claimed that they were agriculturists and that the suit fled was premature. When the suit was tried on the first occasion, the trial Court held that the promissory note had been lost, that the plea of discharge was not true, that the defendants were agriculturists, that the suit was filed on the vendor's lien but the vendor's lien in favour of the plaintiff did not exist and therefore dismissed the suit. On appeal the parties agreed for setting aside the decree of the lower Court and for remanding the suit for fresh disposal on three issues only, viz. , (1)whether the plaintiff was entitled to sue on the debt in question, (2) whether by the execution of the note, the lien was not available in law, as having been abandoned, and (3) whether in this suit based on the debt and not on the note, the plaintiff was entitled to relief against the second defendant. By consent the findings on other issues were to stand, and he binding on the parties in the trial court. On remand the trial Court found that the promissory note had been executed not merely as a collateral security but in full discharge of the balance of the sale consideration for the suit sale and held that the plaintiff was not entitled to sue an the debt in question as on account of the execution of the suit promissory note, the vendor's lien was not available to him in law.

(3.) ON appeal the lower appellate Court considered four questions (1) whether the suit is premature; (2) whether the suit as framed is maintainable, and (3) whether the plaintiff entitled to sue on the original cause of action; and (4) whether the plaintiff is entitled to any relief. The lower appellate Court found that the suit was premature and not maintainable. On the question whether the plaintiff was entitled to Sue on the original cause of action the lower appellate Court found that the note was not a collateral security but was meant to be an independent contract and therefore the plaintiff ought to have sued on the lost. Promissory note and could not fall back upon the vendor's lien.