BAIJ NATH MISTRY Vs. RAJA JANG BAHADUR

JUDGEMENT

(1.) This suit is brought on a promissory-note executed in favour of the plaintiff by the second defendant, who was then the Dewan of the father of the first defendant. The consideration for the note was an advance of money to the second defendant to enable him to pay road-cess on behalf of the first defendant. In the Munsif s Court it was held that the second defendant had an implied authority from the father of the first defendant to raise the money, and that his action had been ratified by the first defendant. The suit was accordingly decreed against the first defendant. On appeal to the Judicial Commissioner this decree was set aside on the findings that the second defendant had no authority to borrow money on behalf of the first defendant and that the acts necessary to constitute a ratification of the second defendant s action by the first did not occur. A Rule has been issued calling on defendant No. 1 to show cause why this order should not be set aside. The question whether defendant No 2 had authority to bind defendant No. 1 is one which the Court had jurisdiction to decide, and we cannot interfere with its decision on revision. It is argued before us, however, that the question of ratification was an issue in the case, and that the Judicial Commissioner failed to exercise his jurisdiction to decide it. The question of ratification was not expressly set-out as an issue, but ES it is independent of the question of the authority of the second defendant, it must be regarded as an issue by itself. The finding of the trying Court is, that on demand being made of the first defendant, he told the second defendant to pay the amount claimed out of his rent collections. The Appellate Court found that the question whether this occurred was immaterial, that there would have been ratification if certain circumstances had occurred which did not in fact occur, and that the facts found by the first Court constituted no admission that the money ordered to be paid was to come out of the pocket of the first defendant. The law laid down by the Judicial Commissioner cannot be accepted as correct but, looking at the facts of the case, I cannot doubt that he had the question of ratification before his mind, and that he in fact decided it adversely to the petitioner. I am of opinion, therefore, that he has not declined jurisdiction on this matter, and that he has not acted with material irregularity within the meaning of Section 115 of the Code, and, consequently, that this Rule should be discharged.

(2.) The Court being divided in its opinion, the opinion of the Senior Judge prevails.

(3.) The Rule is discharged. No order as to costs. D. Chaiterjee, J.