P SOMARAJU Vs. MVENKATASUBBARAYADU

JUDGEMENT

(1.) The plaintiff-appellant's suit, out of which this second appeal arises, was for the recovery of Rs. 1,600, the value of two gold jewels, given to the defendant and also for the recovery of Rs. 300, the value of 20 sovereigns, together with interest on these amounts. The first item was covered by an unstamped promissory note and the promissory note said to have been executed in support of the second item, has been lost. The plaintiff also set up two agreements prior in date to these promissory notes, under which the defendant agreed independently to pay the plaintiff these amounts. These agreements have been found against the plaintiff, by the lower Appellate Court.

(2.) As regards the claim, which was then put forward by the plaintiff based upon the original cause of action, apart from the promissory notes, the learned Subordinate Judge following a decision of this Court, in Muthu Sastrigal v. Viswanatha Pandam Sannadhi (1914) 38 Mad. 660, dismissed the claim. Mr. Somasundaram who appears for the appellants, admits that the decision, in Muthu Sastrigal V/s. Visvanatha Pandara Sannadhi (1914) 38 Mad. 660, would govern this case; but he presses me to say that in view of two subsequent decisions of this Court and also of other Courts, the decision in Muthu Sastrigal V/s. Visanatha Pandara Sannadhi (1914) 38 Mad. 660, requires reconsideration and on that ground, he asks me to refer this case to a Bench. I do not think that the subsequent decisions of this Court referred to, namely, Shanrnuganatha Chettiar V/s. Srinivasa Ayyar (1916) 40 Mad. 727, and Chokkalingam Chetty V/s. Annamalai Chetty (1916) 34 I.C. 417, can be said to have shaken the authority of the decision in Muthu Sastrigal V/s. Visvanatha Pandara Sannadhi (1914) 38 Mad. 660 and in Shanmuganatha Chettiar V/s. Srinivasa Ayyar (1916) 40 Mad. 727, Abdhur Bahim, J., refers to Muthu Sastrigal V/s. Visvanatha Pandara Sannadhi (1914) 38 Mad. 660, and distinguishes it in these terms: "The promissory note, on which action was brought in that case, was inadmissible in evidence, as it was an unstamped note." The view taken by the learned Judges was that as the suit was based on the note and that was inadmissible in evidence, the suit must fail. In that case, there was no question of the liability of the partners, on account of the debt, evidenced by the promissory note. At p. 730. there is this observation, made-by the learned Judge, namely, "There is no doubt, so far as it appears from the- authorities referred to at the bar, that where there exists an antecedent debt, and a promissory note is executed for such a debt, a suit on the promissory note failing, an action on the debt would lie." In view of the fact that the decision in Muthu Sastrigal V/s. Visvanatha Pandara Sannadhi (1914) 38 Mad. 660, has not distinctly been dissented from by the learned Judge, the antecedent debt, that is referred to in the second extract, from His Lordship's judgment, can only mean debt anterior in time, with reference to the promissory note debt. The two prior agreements pleaded have been found against the appellant, by the lower Court. The decision, in Ghokkalingam Chetty V/s. Annamalai Chetty (1916) 34 I.C. 417, also cannot be said to have shaken the authority of the decision, in Muthu Sastrigal V/s. Visvanatha Pandara Sannadhi (1914) 38 Mad. 660.

(3.) As regards the question at issue, different High Courts have taken different positions and seeing that our High Court has consistently refused to give relief, based upon antecedent debts in such circumstances, I do not think that there is any justification for my referring this matter to a Bench, for a re-consideration of the decision in Muthu Sastrigal V/s. Visvanatha Pandara Sannadhi (1914) 38 Mad. 660.