THANGATUR SUBBARAYUDU Vs. NICHANAMETLA SUBBARAYUDU

JUDGEMENT

(1.) This is an appeal from the order of the District Judge of Cuddappah, dated 4 April 1932, on an appeal from the decree of the District Munsif of Prodattur, dated 12 August 1931, dismissing the suit (No. 119 of 1931) instituted by one Subbarayudu for recovery of the amount due on a promissory note executed by defendant 1 in favour of defendants.

(2.) Defendant 2 is the adoptive mother of the plaintiff. Disputes arose between them sometime after the promissory note was executed in favour of defendant 3 and the disputes were referred to certain arbitrators in January 1930. The arbitrators delivered an award in September 1930, and the award was subsequently registered in the same month by the District Registrar of Cuddapah. It may also be stated in this connexion that the suit promissory note was actually delivered to the plaintiff by the arbitrators, because under the award this promissory note as well as certain other oustandings were allotted to the plaintiff's share in the-partition made by the arbitrators. On 17 October 1930, the plaintiff sent a. registered notice to defendant 1 demanding payment of the amount due on the promissory note, to which defendant 1 sent a reply stating that he had already paid on 17 October which happens to be the very date-on which the registered notice was sent-a sum of Rs. 1,500 to defendant 2. The plaintiff's case was that defendant 1 was aware of the award even before he sent the registered notice, that the payment of Rs. 1,500 pleaded by him was not true and that both the defendants had colluded together in order to cause loss, to the plaintiff. Defendant 2 was impleaded on the further ground that there was a provision in the award whereby he was liable to make good any loss which the plaintiff might sustain, if she failed to endorse the promissory note in favour of the plaintiff.

(3.) It appears from the written statement of defendant 2 that a suit had been filed by the plaintiff in 1930 in the District Court of Cuddapah, namely, O.S. No. 4 of 1930, in which the validity of the award was disputed by defendant 2, the suit being based on the award. Of course the question whether the award is valid or not has to be decided in that suit, but for the purpose of the present appeal it must be assumed that the award is valid. The District Munsif framed two preliminary issues, the first being whether the suit is maintainable in the absence of an endorsement on the promissory note in favour of the plaintiff, and the second being whether the suit is not bad for misjoinder of defendants and of the causes of action. The first preliminary issue was found against the plaintiff though issue 2 was found in his favour and as a result of the finding on issue 1 to the effect that the suit is not maintainable in the absence of an endorsement, the suit was dismissed by the District Munsif with costs. On appeal the District Judge disagreed with the view taken by the District Munsif on the preliminary point of the maintainability of the suit and was of opinion that the suit was maintainable in the absence of an endorsement. He accordingly reversed the decree of the lower Court and remanded the suit to the lower Court for disposal according To law. The present appeal is from this order of remand.