BIKRAM KISHORE MANIKYA BAHADUR Vs. JADAB CHANDRA CHOUDHURY

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff from a preliminary decree in a suit for accounts. During the pendency of the appeal a final decree in the suit has been passed. The facts necessary to be stated are the following: Defendant 1 was a mukhtear in the service of the plaintiff's father Maharaja Birendra Kishore Manikya Bahadur, the Ruling Chief of Tippera. He was appointed as such mukhtear on 22 December, 1914 and for this service he executed a kabuliat on 24 December 1916. In accordance with an order made on 22nd December 1914, about the time when he was appointed, he furnished two sureties defendants 4 and 5, who executed a surety-bond on 18 April 1919. The Maharaja died on 13 August 1923. Thereafter the plaintiff, Maharaja Bir Bikram Kishore Manikya Bahadur succeeded to the Raj and on 31 March 1926 executed an Ammuktearnama in favour of defendant 1 authorising him to withdraw money and file petitions of satisfaction and also giving him certain other powers. On 23 May 1926 a fresh kabuliat was executed by defendant 1 in favour of the plaintiff in respect of his services, and as on the previous occasion when he had executed a similar kabuliat, this time he furnished two other sureties, namely defendants 2 and 3, who on the same date executed a fresh surety, bond. Defendant 1 continued in service till 5th September 1927 when he was suspended and he was eventually dismissed on 23 April 1928.

(2.) On 21 March 1929 a notice of demand appears to have been served on defendant 1 calling upon him to pay up the amounts due from him to the State, and on his failure to comply with the said notice the present suit was instituted on 30 June 1930. The suit was framed as a suit for accounts, and in the schedules to the plaint, sever in number, various items set out, aggregating to a sum of Rs. 10,000 odd in respect of which it was said that defendant 1 had either committed defalcation or was liable to make good the loss which had been caused to the State. In Sch. Ka were set out a number of items representing dues under decrees which defendant 1 was alleged to have realised out of Court but had not paid to the State. In Sch. Kha items were set out in respect of decretal dues which defendant 1 was alleged to have taken out of Court but had not credited into the accounts. In Sch. Ga a number of items were set out, in respect of which it was said that by reason of the default on the part of defendant 1 execution of decrees obtained with regard to the amounts, had become barred by lapse of time. In Sch. Gha a number of items were set out in respect of which execution petitions were dismissed for default or for want of Tadbir by defendant 1. And in Sch. Uma a few rupees were mentioned as having been taken either in cash or in Court-fees and misappropriated by defendant 1. In the plaint it was also stated that after the demand had been made on defendant 1 for putting in the total amount of Rs. 10,000 odd which had been found due from him on such accounts as were made, defendant 1 did not comply with the demand and on that a fresh loss to the extent of Rs. 1,000 odd was caused to the State. On these and similar other allegations the suit was laid, Written statements were put in by defendants 1, 2, 3, 4 and 5. Having regard to the contentions that have been put forward in the appeal, it is not necessary to refer to the contents of the written statement. It is sufficient to say that on 22 August, 1932, the Subordinate Judge made a preliminary decree in the suit.

(3.) The judgment in accordance with which this decree was made is anything but satisfactory. In it various findings of fact which were necessary to be arrived at in connection with the case were made, but they are scattered all over the judgment and it is difficult to form a clear idea as to what exactly the learned Judge intended to find. Indeed, with regard to some of the points, it may be said that the findings are not possible of reconciliation. In the decree that was drawn up, there was no reference whatsoever to the liability of the sureties, namely defendants 2, 3, 4 and 5 although in the final decree that had been made in the suit such adjudication on the one hand and these defendants on the other had to be relied upon. Having regard to these facts, the case had presented some difficulties, but thanks to the arguments that have been addressed to us on behalf of the parties who have appeared before us, the position in the end seemed to us to be perfectly clear. In the appeal only defendants 2 and 3 have appeared as respondents.