MAHOMED KHALEEL SHIRAZI Vs. LES TANNERIES LYONNAISES

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a decree, dated March 14, 1922, of the High Court at Madras, which was made in its appellate civil jurisdiction and varied as decree, dated October 20, 1920, of a Judge of the same Court, which was made in the ordinary original civil jurisdiction of the High Court.

(2.) The appeal arises in a suit which was instituted with the leave of the High Court on Februarys, 1919, in the ordinary original civil jurisdiction of the High Court by the plaintiffs, who live in the city of Madras, to obtain a decree against Les Tanneries Lyonnaises and their agent Monsieur J. Marret for money alleged to be due to the plaintiffs under a contract for the sale and delivery of goat skins under a contract of May 25, 1917, and under a contract of January 26, 1918, for the sale and delivery of sheep skins. There was another defendant to the suit named, C, Sowrimuthoerya Oodayar, against whom no relief was claimed. The suit was tried and the decree of the trial Judge was made in the ordinary original civil jurisdiction of the High Court. The French company carries on business at Oullins, near Lyons, in France. Marret and Oodayar live at Pondicherry, The contract of May 25, 1917, was made by Marret as the agent of the French company with the plaintiffs in the city of Madras, and the money which might become due under it was payable at a bank in the city of Madras. The contract of January 26, 1918, was made by Marret at Pondicherry, and the money which might become due under it was payable to the plaintiffs at the bank in the city of Madras. The trial Judge made, on October 20, 1920, a decree for Rs. 1,76,242 0-5, with interest thereon and for costs against the French company, and by his decree dismissed the suit against Marret and Oodayar, but decreed that Marret should pay to the plaintiffs taxed costs and interest thereon. The plaintiffs did not appeal to the High Court against the decree of the trial Judge dismissing the suit against Marret. They bad obtained a decree against the French company for their entire claim, and with that they were then content. As appears by the record, the French company and Marret jointly appealed to the High Court against the decrees which had been made against them. On that appeal the High Court found that the French company was not liable to pay anything in respect of the claim under the contract of January 26, 1918, and by its decree modified the decree against them made in respect of liability under the contract of May 25, 1917, with certain costs, and dismissed the suit against Marret and Oodayar. Against that decree of the High Court this appeal by the plaintiffs has been brought.

(3.) In the High Court Marret on behalf of the French company and himself had filed a joint written statement. In this appeal for the first time the French company and Marret are represented by different counsel instructed by separate firms of soli-citors. Those learned Counsel raised preliminary objections to the appeal, the consideration of which their Lordships decided should stand over until the arguments on the appeal had been heard. Their Lordships will now state what those preliminary objections we re and what is their decision on them. Each of the learned Counsel contended that the suit was not within the cognisanoe of the High Court in its original civil jurisdiction. The learned Counsel for Marret further contended that this appeal to His Majesty in Council is, in effect, an appeal against the decree of the trial Judge dismissing the suit as against Marret, from which decree the plaintiffs had not appealed, and that such an appeal was not allowed by the Civil P. C., 1908, or by the Letters Patent of the High Court. As to the objection that the suit was not within the cognisance of the High Court in its original civil jurisdiction, their Lord-ships find that the contract of May 25, 1917, was made in the city of Madras, and it was agreed that the money payable under that contract should be paid in the city of Madras, and that it was agreed that the money payable under the contract of January 26, 1918, should be paid in the city of Madras, and further find that the High Court, under its Letters Patent, gave leave to the plaintiffs to bring the suit in the ordinary original civil jurisdiction of the High Court, and consequently hold that the suit was within the cognisance of the High Court in its ordinary original civil jurisdiction, and disallow that objection. As to the objection especially raised by the learned Counsel for Marret, that as the plaintiffs had not appealed against the decree of the trial Judge dismissing the suit, excepting as to costs, against Marret, no appeal lay against him, their Lordships have been referred to the Civil P. C., Order XLI, Rule 33; Gangadhar V/s. Banabashi, (1914) 22 C. L. J. 380 and Bhaidas Shivdas V/s. Bai Gulab. (1921) L.R. 48 I.A. 181 : s.c. 23 Bom. L.R. 623 Their Lordships think that this appeal to His Majesty in Council, in so far as Marret is concerned, is, in effect, an appeal direct to His Majesty in Council from the decree of the trial Judge, which is not allowable under the Code of Civil Proce8ure, l908, or under the Letters Patent of the High Court, and they hold that the Code of Civil Procedure, 1908, Order XLI, Rule 33, was not intended to apply to such an appeal, and they accordingly decide that the appeal, so far as Marret is concerned, should be dismissed, but without costs.