BANAMBAR DASEXECUTIVE OFFICER Vs. UDAYANATH PATTANAIK

JUDGEMENT

(1.) The question of creditor's right of appropriation under the Indian Contract Act. is the main point involved in this second appeal filed by the Executive Officer, Endowment Trustee Board Dakhinparswa alias Sree Ramdas Math, Town Puri (defendant No. 3 in the suit) as the appellant from a reversing decision of the learned Subordinate Judge, Puri, whereby he modified the decree of the learned Munsif and decreed the plaintiff's suit in full for arrears of salary, on the facts and circumstances hereinafter stated.

(2.) The defendant Mahant Jagannath Ramanuj Das as Marfatdar of Sri Jagannath Mahapravu deity employed the plaintiff as his law agent under verbal agreement at a monthly salary of Rs. 25/- and 12 Gounies of paddy. The plaintiff worked as such agent but due to his having incurred dissatisfaction of the Mahant, the plaintiff had to leave service on February 11, 1955. The amount claimed by the plaintiff in the suit was for Rs, 1,144/6/9 (inclusive of Rs. 859/2/9, the balance being for paddy which was found to have been paid) for his salary from April 1, 1952 to February 11, 1955. The defendants in the suit are Jaggannath Mahapravu through the Marfatdar as defendant No. 1; defendant No. 2 Mahant Srinivas Ramanuj as Chela of Jagannath Ramanuj Das; and defendant No. 3 is the appellant herein who as Executive Officer had taken charge of the administration of the Math. The main defence was on the question of the right of appropriation of certain moneys towards past arrears of salary due to the plaintiff. Admittedly, the plaintiff had received, during the period in question, a sum of Rs. 553/10/9, The question is whether the sum could be appropriated towards past arrears due to the plaintiff. The trial Court, on evidence, found that the plaintiff cannot appropriate the said sum towards past arrears, if any, prior to the institution of the suit; accordingly the trial court decreed the suit in favour of the plaintiff in part for a sum of Rs. 305/8/-, being the balance after deducting the said sum of Rs. 553/10/9. There was, however, no cross-appeal from that part of the decree. In appeal, the learned lower appellate court found that the plaintiff can appropriate the said sum towards past arrears under Section 60 of the Indian Contract Act; and accordingly decreed the suit in favour of the plaintiff for the entire sum claimed in the suit. Hence this Second Appeal.

(3.) The only point of law, which is involved in this appeal, is whether the plaintiff had right of appropriation of the said sum of Rs. 553/10/9 towards the past arrears of his salary under the Indian Contract Act. Mr. H. Panda, learned counsel for the defendant appellant contended that neither Section 59 nor Section 60 nor Section 61 applied in the case, because, here, according to him, there was no question of "several distinct debts", for the salary from month to month is one debt and not several distinct debts, only they become payable month after month and they are neither several nor distinct. The learned counsel's further contention was that no specific issue was raised whether the defendants owed any debt to the plaintiff for the period prior to the institution of the suit; he also commented on certain adverse inference drawn by the learned lower appellate Court against the defendant appellant for alleged nonproduction of accounts; and lastly he relied on certain alleged errors of fact.