CHALAPURAM BANK, LTD THROUGH ITS MANAGING PROPRIETOR K C SREEVEERA RAYAN RAJA AVERGAL Vs. ZAMORIN RAJA AVERGAL, REPRESENTED BY THE REGULATION COLLECTOR AND AGENT TO THE COURT OF WARDS

JUDGEMENT

(1.) The main question argued is whether this suit is sustainable or is barred by Section 47 of the Civil Procedure Code; and I, therefore, follow the lower Courtis in dealing with it with reference only to the plaint and a few documents necessary to its understanding, assuming the truth of the allegations made.

(2.) In 1912, the late Zamorin of Calicut arranged with his Bank,, the defendant-appellant, that it should satisfy a decree, in connection with which his property had been attached. The Bank, however, did not satisfy the decree, but obtained an assignment of it and afterwards recouped itself for the amount spent in doing so by deducting it from the Zamorin s next instalment of maliltana or revenue, which was received to its credit in March-April 1912. The pending execution petition was, therefore, disposed of on 1st April, and the Bank on 28th June obtained recognition of its assignment in the order in Exhibit U. The present Zamorin, the plaintiff-appellant, succeeded on 30th December. The Bank had already applied for execution of the assigned decree and obtained it in spite of plaintiff s opposition and an unsuccessful attempt by him to obtain a review of the order of 28th June 1912. He, therefore, was constrained to pay the Bank the decree amount, though it had already once paid itself the amount from the balance in its hands. The plaint also refers to facts in explanation of plaintiff s predecessor s failure to oppose the assignment application, and the Bank s application for execution, and they will be the subject of enquiry at the trial. But the material allegations are those stated. On them plaintiff claims repayment of the amount of his last payment to the Bank and of the legal expenditure incurred in resisting its apparently unjust demand.

(3.) The Bank s first contention, which the Court of First Instance adopted, is that this suit is simply to recover money paid in execution and is, therefore, unsustainable. It is supported on the grounds that the original decree-holder and the Manager of the Bank, with whom the arrangement was made, are not parties and that no contract by the Bank to satisfy the decree is alleged. But even it the parties referred to were necessary, and I cannot see how they were (since deceit is not imputed to the decree-holder at all or to the Manager personally except in the alternative), their absenpe would not change the character of the suit; for they could, if necessary, have been impleaded. And in fact in paragraphs 5 and 6 of the plaint, an agreement by the Bank to satisfy the decree, in pursuance of which it recouped itself from the Zamorin s balance, is set up clearly. The suit, I agree with the lower Appellate Court, is framed as, one for damages for the Bank s breach of its agreement with him.