DURGA CHARAN BOSE Vs. LAKHI NARAIN BERA

JUDGEMENT

(1.) This is an appeal preferred by Durga Charan Bose, plaintiff in Suit No. 398 of 1915, which suit has been dismissed by the District Judge. We are also asked to revise the decree and .order of. the Additional District Judge in Appeal No. 291 of 1913 arising out of Suit No. 12 of 1912 in which Durga Charan Bose was defendant No. 9. The facts of the case are somewhat peculiar. There was a dispute between Lakhi Narain Beta and Hari Krista Bera on the one side and Gopal Chandra Jana of Nadabhouga and others on the other over certain paddy, which resulted in proceedings under Section 107 and Section 145, Criminal Procedure Code. The matter was referred to the arbitration of Pramada Nath Dutt, Muktear of the Beras, and (Durga Charan Bose, the present appellant, the Muktear of the opposite party. Of the merits of that dispute we have no means of judging, nor is it necessary for the present purpose to discuss them. It is sufficient to say that on 19th January 1910 Durga Charan Bose executed a promissory note for Rs. 250 .in favour of the Beras payable on demand. On that promissory note the Beras instituted Suit No. 12 of 1912 against Gopal Chandra Jana and 7 others, defendants Nos. 1 to 8, and Durga Charan Bose, defendant No. 9. The suit came on for hearing before the Munsif. Defendants Nos. 3 and 8 not being served, the suit was dismissed as against them. Defendants Nos. 1, 2, 4, 5, 6 and 7 denied all knowledge of the promissory note, pleaded that it was void for want of consideration, and raised other defences. Durga Charan Bose contended that there was no consideration for the note and that) if " there was, it had in fact been satisfied. It may be noted that he no longer puts forward these pleas but admits his liability on the promissory note. The Munsif found that, the promissory note was executed by Durga Charan Bose for good consideration but really as a surety for defendants Nos. 1 to 8 who owed certain moneys to the Beras. He accordingly on 31st March 1913 passed a decree against all the defendants (other than defendants Nos. 3 and 8 who were not served) and directed that the decretal amount should be realised first from the properties, or persons, or both, of defendants Nos. 1, 2, 4, 5, 6 and 7 only, and then the balance, if necessary, from the properties of the defendant No. 9 (Durga Charan Bose).

(2.) Against this decree the defendants Nos. 1, 2, 4, 5, 6 and 7 appealed making the Beras, the plaintiffs, respondents, but not Durga Charan Bose their co-defendant. The appeal was heard by the Additional District Judge, Mr. Daval, on 28th February 1914. Before him the plaintiffs Pleader admitted that on the pleadings there .was no cause of action against defendants Nos. 1 to 8, whatever rights defendant No. 9 might have against them. The learned Additional District Judge accordingly set aside the decree against defendants Nos. 1, 2, 4, 5, 6 and 7 but added (and those words appear also in his decree) "a decree will be given against the defendant No. 9 only."

(3.) On 20th March 1914 Durga Charan Bose applied for the restoration of the appeal. After hearing the parties the Additional District Judge on 24th June 1914 passed the following order:-- "The decree in the lower Court was . against defendants Nos. 1 to 7" (it was not as a fact against defendant No. 3) "and defendant No. 9 and it was acquiesced in by defendant No. 9. I do not see how I can permit defendant No. 9 to re argue the appeal. I dismiss the application, I find no section under which it can come."