S. CHATTERJI Vs. T.B. SARWATE

JUDGEMENT

(1.) THIS appeal raises practically the same questions of law and fact which arose in First Appeal No. 133 of 1956 decided by us today. The two suits had been tried together and were disposed of by a common judgment. The appeals were also heard together and as they raised common questions of law and fact, we are of opinion that for the reasons given by us in the other appeal, this appeal must also fail and be dismissed with costs.

(2.) ONE more contention was raised in this appeal which contention was raised and negatived in the suit also. The contention was that the suit had abated by reason of the failure of the plaintiff -respondents to bring on record the legal representatives of the deceased -defendant No. 2 who died during the course of the trial. It has been held on the authority of Devendrakumar v. Nirmala -bai AIR 1944 Nag 292 : ILR (1945) Nag 349 that an agreement not to sue one of the tort -feasors is not a bar to an action against the others.