AKHARAM Vs. SOHANLAL

JUDGEMENT

(1.) THE only point calling for determination in this appeal by the plaintiffs is whether the payments of interest made by Madanlal on the promissory -note in suit admittedly within limitation would extend the limitation against the co -promiser Sohanlal also, who is admittedly the brother of Madanlal.

(2.) THE trial court held that Madanlal was duly authorised by Sohan Lal to make these payments and consequently it held the suit to be within limitation against Sohanlal also and decreed it against him, whereas the learned District Judge, Jodhpur has held that Madanlal was not proved to be a duly authorised agent to make payments of interest towards the promissory note on behalf of the co -promisor Sohanlal and consequently he dismissed the suit against Sohanlal. In these circumstances the plaintiffs have come in second appeal to this Court.

(3.) SO far as express authority is concerned, admittedly there is nothing in writing. The plaintiffs produced P.Ws. Roopram, Narayandas, and Sohanraj to prove express authority. It may be observed in this connection that no express authority was pleaded by the plaintiff in the plaint. As a matter of fact the allegation regarding authority is most ambiguous and vague. All that has been pleaded in para No. 2 of the plaint is that Madanlal, the younger brother made payments of interest on behalf of his elder brother Sohanhl. Apart from that, the oral evidence led by the plaintiffs in this connection has not been believed by the learned District Judge and in my opinion rightly so. P.W. Roopram's (Plaintiff) statement is most unconviceing. In the first instance he has stated that he and Akheyram were present at the time when the verbal authority was given by Sohanlal to Madanlal, for making payments on his behalf, towards the amount due on the promissory -note. He, however, was unable to give the date when this authority was given and later on he stated that the authority was given on the next day of the execution of the promissory -note. Narayandas (P W. 3) does not make mention of giving any such authority by Sohanlal to Madanlal on the next day but states that the authority was given at the very time the promissory note was executed. Akhey Raj who is alleged to be present at the time of delegation of the authority in question has not been examined at all and the presence of Sohanraj the scribe of the promissory -note, at the time of delegation of the authority has not been deposed to by the plaintiff Roopram himself Learned Counsel for the appellants read out the statements of these witnesses from his brief and was not able to show that the learned District Judge had in any way misread the same. I am, therefore, of the opinion that the appreciation of the evidence of these witnesses by, the learned District Judge cannot be said to be erroneous and it has been rightly held by him that the plaintiffs have failed to prove any express authority by Sohanlal to Madanlal for making payments towards the promissory -note in the suit.