BHAWANI DAS Vs. BABU SINGH

JUDGEMENT

(1.) THIS is an appeal in a suit for the recovery of a sum of Its. 312 which the plaintiffs claimed to recover either from Thakoor Sheopal Singh or from Babu Lal. The plaintiffs were mortgagees of the property in suit. According to their case Babu Lal had received the amount now claimed on account of rent of the mortgaged property for and on behalf of the plaintiffs. The defence of Babu Lal was that he had been collecting rent on behalf of his master, Sheopal Singh, and that he was not personally responsible for the rent so collected which was handed over to his principal. The Court of first instance held that Babu Lal was the lessee on behalf of the plaintiffs and that he was really responsible for the rent. It gave a decree against Babu Lal and exempted Sheopal Singh. Babu Lal appealed against the decree of the Court below. The plaintiffs preferred no appeal against the decree in so far as it dismissed the claim against Sheopal Singh. On appeal the Court below has found that Babu Lal was not a lessee on behalf of the plaintiffs and that he is not personally responsible for the money collect- ed by him which he did for and on behalf of Sheopal Singh. It dismissed the claim against Babu Lal. Sheopal Singh was also a party respondent to the appeal in the Court below. He seems to have put in his appearance in that Court, and it was as against him that the finding has been arrived at that it was he who actually received the money now claimed. No decree was, however, made against him. The plaintiffs have preferred the appeal in this Court and have made both Babu Lal and Sheopal Singh parties respondents to this appeal.

(2.) MR. Sandal on behalf of the appellants, accepting the finding of the Court below, contends that a decree ought to be made for the money claimed against Sheopal Singh. He relies upon Rule 33 of Order XLI of the Code of Civil Procedure and in support of his case cites a ruling of the Madras High Court reported as Imbichunni Nair v. Narayana Nambudri 21 Ind. Cas. 767 : (1913) M.W.N. 1024. So far as the Courts power to grant a decree like this against Sheopal Singh is concerned it is hardly necessary to cite any case as the illustration given to the section is a case exactly in point. The rule was adopted from Order 58, Rule 4, of the Rules of the Supreme Court in England, and this case shows how necessary the rule is to meet cases where one or other of the defendants is responsible for the claim though it is not quite clear before the decision of the Court which of them was so responsible. Following the ruling of the Madras High Court, I allow the appeal and make a decree for the amount claimed against Sheopal Singh. Shoopal Singh has not appeared in this Court, but as he appeared in the Court below it is unnecessary to remand the case for any further findings, as the actual collections admitted to have been made by Babu Lal are greater than the amount claimed. 1 decree the claim against Sheopal Singh with-costs in the Court of first instance. The plaintiffs will bear their own costs in this Court and in the Court below. They will have to pay the costs of Babu Lal in all Courts including Counsel s fee in this Court on the higher scale.