MANJUNATHA CHETTY Vs. APPAYA ALIAS MANUEL SOUZA

JUDGEMENT

(1.) This is a suit for a declaration that the decree obtained by the defendant against the plaintiffs in O.S. No. 662 of 1907 was satisfied and for an injunction restraining the defendant from executing that decree. There is a third prayer which is valued at Rs. 5 and which runs in these terms:--"Granting any other reliefs which are not prejudicial to the plaintiffs and which the Court may think fit according to the circumstances of the case." It is difficult to see what this prayer means.

(2.) The defendant pleaded that he did not receive the money and did not agree to enter up satisfaction. The Munsif disbelieved the plaintiffs story, but the Subordinate Judge has decreed the claim.

(3.) An objection was taken by Mr. Adiga for the first time in this Court that the suit as brought is not sustainable. As the determination of this question did not involve the ascertainment of any facts, we heard arguments on it. We are of opinion that the objection is wellfounded. The question raised in the suit comes under Clause (1) of Section 47 of the Code of Civil Procedure and therefore a separate suit does not lie. The decision in Deno Bundhu Nundy v. Hari Mati Dassee (1904) I.L.R. 31 C. 480 is in point. Shephard and Subramania Aiyar, JJ. held in Bairagulu v. Bapanna (1892) I.L.R. 15 M. 302 that a suit for declaration will not lie. The relief for injunction stands on the same footing. Mr. Sitarama Row sought to distinguish these cases on the ground that there is a claim for damages in this suit and referred us to the curiously worded third prayer in the plaint. In the first place, the prayer is not one claiming damages for breach of the agreement to certify. In the second place, the plaintiffs have suffered no damage yet.