NANNU PRASAD Vs. NAZIM HUSAIN

JUDGEMENT

(1.) A preliminary objection has been taken to the hearing of this appeal which has been filed on behalf of the plaintiff in a suit brought in the Court of the Subordinate Judge of Agra for the recovery of. Rs. 3, 270-15-0 alleged to be due in respect of a promissory note executed by the defendant. The defendant, Syed Nazim Husain, who is the respondent here and who is a pleader in the Agra District Court, resisted the claim and pleaded that nothing was due from him. He admitted in his written statement that he had executed the promissory note upon which the suit was brought, but he put forward the plea that there was an agreement between himself and the plaintiff that the amount entered in the promissory note was to be liquidated by fees to be earned by him for doing professional work for the plaintiff. There were various other pleas raised, but for the purpose of settling the preliminary objection in this case this is a sufficient disclosure of the defence which was put in The result of the suit in the Court of first instance was that the plaintiff's claim was decreed to the extent of Rs. 1,721- 9-2 with future interest at 6 per cent.

(2.) Both parties were dissatisfied with the decree of the Court of first instance and there were two appeals before the District Judge. The appeal of the plaintiff was numbered 456 of 1925, and that of the defendant was numbered 510 of 1925. Both these appeals were decided by one judgment which was delivered by the Additional District Judge on 9 February 1926. The result of the trial of the two appeals in the Court of the Additional District Judge was that the sum of Rs. 1- 721-9-2, which the first Court had awarded to the plaintiff was, reduced to Rs. 1,145. This decision was come to by the learned Judge after an examination of the accounts put forward by the parties respectively. On this finding, that the plaintiff was only owed Rs. 1,145 by the defendant it necessarily followed that the plaintiff's appeal was dismissed, for, as already mentioned in his appeal, he was claiming the difference between Rs. 1,721-9-2, allowed him by the first Court and Rs. 3,270-15-0, the amount of claim as stated in the plaint.

(3.) It is admitted that after this judgment disposing of both appeals was written, two decrees were prepared, one in the plaintiff's appeal No. 456 of 1925, and the other in the defendant's appeal No. 510 of 1925. The case now before us, second appeal No. 1279 of 1926, is the appeal of the plaintiff against the appellate decree of the Additional District Judge of Agra in appeal No. 456 of 1925, that is to say, the plaintiff's own appeal. The plaintiff has filed no appeal against the decree of the Additional District Judge, allowing the defendant's appeal, No. 510 of 1925, and it has been argued before us that because the plaintiff has failed to put in an appeal against the decree allowing the defendant's appeal in the lower appellate Court this appeal cannot be heard on the ground of res judicata.