GAJADHARPRASAD RAMLAL Vs. UDAICHAND KAPURCHAND PARWAR

JUDGEMENT

(1.) THE plaintiffs appeal. Their case is that there was a partnership between the parties which was dissolved by mutual consent. It was known that on a taking of accounts the defendant' would owe the plaintiffs a sum of money exceeding Rs. 8000. Therefore on 3rd February 1929 the defendant agreed to mortgage one of his houses for Rs. 8000 and he agreed to pay the balance which would be found due on the taking of accounts as a personal liability. Accounts were sub-sequently taken and it was discovered that the defendant owed the plaintiff a sum of Rs. 10,060. This formed the subject-matter of a previous litigation in which the plains tiffs had sued for a dissolution of partnership and for rendition of accounts. It was found there by the Appellate Court that the accounts had already been settled and that on that settlement the defendant owed the plaintiffs a sum of Rs. 10,060. It was also held that as the accounts had already been settled the suit did not lie in that form and that the plaintiffs would have to sue separately on the settled account. That suit has now been brought and the appeal arises out of it. In the lower Court the plaintiffs sued for specific performance of the agreement to mortgage to the extent of Rs. 8000 and for a money decree for the balance, and in the alternative, if the prayer for specific performance was not allowed, then for a decree for Rs. 10,060.

(2.) DEALING first with the prayer for specific performance, a question was raised as to whether specific performance of an agreement to mortgage can be granted. As we' do not think that the agreement has been proved, we need not deal with this at length. It is enough to say that, in our opinion, their Lordships of the Privy Council have decided the matter in favour of the view for which the plaintiff contends. That decision is Jewan Lal Daga v. Nilmani Chaudhuri (1928) 15 AIR PC 80. (Their Lordships then examined certain facts and evidence on the question whether agreement had been proved and came to the conclusion that it had not been proved.) That leaves the alternative case for consideration. It is admitted on both sides that the fact that there was a settlement of accounts and that the amount found due by the defendant to the plaintiffs was Rs. 10,060 is concluded by the previous judgment and that the matter is resjudicata. But, it was argued on behalf of the defendant respondent that the present claim ought to have been included in the previous suit and that therefore the present suit is barred by Order 2, Rule 2. We need not examine this in detail because, in our opinion, the claim is barred by time in any event. We are of the opinion however that Order 2, Rule 2 is not a bar because the causes of action are different.

(3.) WE understand this to mean not only that the agent must be duly authorised to sign the document in question but that he must be authorised to sign for the purpose which the Section contemplates, that is to say he must be authorised to sign on behalf of the person sought to be made liable for the purpose of acknowledging liability. We do not mean by this that the authorisation must necessarily be direct. It can be implied, as for instance from the nature of the employment, but the authorisation, whether it be express or implied, must be to acknowledge the liability in question and not merely to sign the document: see Narain Rao v. Manni Kuar (1922) 9 AIR All 230. In Beti Maharani v. Collector of Etawah (1895) 17 All 198 their Lordships of the Privy Council were concerned to see whether an agent appointed under a general power of attorney to manage lands could be said to have the authority required, by Section 19, and they held that he had not because his authority was to manage lands and not to acknowledge personal liabilities. The question their Lordships posed at page 207 was whether he was "an agent duly authorised in that behalf" within the meaning of Section 19, Limitation Act.