AKSHOY COOMAR GOPE Vs. KALI NARAYAN ROY ON HIS DEATH HIS HEIR AND LEGAL REPRESENTATIVE SIDDHESWARI PROSAD RAY CHOWDHURY

JUDGEMENT

(1.) THIS is an appeal from the order of the Additional District Judge of Dacca remanding the case for the decision of the trial Court after setting aside the decree of that Court. The facts of the case are as follows: The defendant No. 3 was a servant of the plaintiff accountable for money received in the course of his business. Defendants Nos. 1 and 2 were his sureties. After the defendant No. 3 had ceased to act as the agent of the plaintiff a suit was brought for accounts and a decree was made against him in Suit No. 2139 of 1910. It appears that the plaintiff attempted to realize the amount decreed in his favour and failed itt his attempt to do so. That happened soma time in 1814. After that the plaintiff brought a suit against all the three defendants in 1917 for recovery of the amounD decreed to him in Suit No. 2139 of 1910. His suit was dismissed in the lower Appellate Court and the plaintiff preferred an appeal to this Court, which was Appeal from Appellate Decree No. 2466 of 1920, In that appeal an order was made dated the 21 of December, 1922, allowing the plaintiff to amend his plaint with reference to oertain matters and directions were given With regard to the amendment by this Court and the case was sent back to be tried on the conditions referred to in the order of the High Court. When the case was sent back to the trial Court, tha plaint apparently was amended by the plaintiff. The Court of first instance allowed the amendment on the 2nd of May, 1923. The order of the High Court so far as it is relevant to the present question runs thus : "The plaintiff be permitted to amend his plaint (subject, of course, to the Law of Limitation) in such a way as to take the Court to take an account as between the plaintiff and the defendant No. 3 in the presence of the defendants Nos. 1 and 2..." The Subordinate Judge was of opinion lhat the cause of action against the contesting defendants, that is defendants Nos. 1 and 2, accrued from the date of the termination of the agency of defendant No. 3, and that the original suit was instituted within the period of 12 years which was submitted to be the period of limitation for he suit. He, however, held that the amendment was made after the lapse of 12 years from the accrual of the cause of action and relying on certain authorities he was of opinion that the character of the suit had been changed and a new cause of action has been introduced after the expiry of the period of limitation. He was, therefore, of opinion that the directions in the judgment of the High Court could not be properly allowed and the reliefs claimed thereby were barred by limitation. The suit was dismissed but certain other relevant issues were decided in favour of the plaintiff. There upon the plaintiff referred an appeal to the District Judge. The learned Judge was of Opinion that as the High Court had directed the amendment, the question of limitation did not arise and in that view be set aside the decrees of the Subordinate Judge and remanded the case for allowing amendment to be made and for decision of the suit According to law. The defendants have appealed to this Court against that order, and they contend that having regard to the order of the High Court that the amendment should be allowed subject to the Law of Limitation, the District Judge was wrong in holding that the question of limitation does not arise in the present case. It seems to us that both the Courts below have gone off the rails in the decision of this matter. It is quite true, bb lies been contended on behalf of the appellants, that when the High Court directed that amendments ehould be allowed subject to the Law of Limitation, it was open to the trial Court to discuss the question of limitation. It is, of doubt, true that under Order Vl, Rule 17, Civil Procedure Code, a Court in the exercise of its discretion may allow a plaint to be amended at any me and at any stage of the suit. It has been held that it is competent to the Court to allow the plaint to be amended tender this Rule, even after the etpiry of the period prescribed for the institution or a new suit. See the case of Satchidananda Dutt V/s. Nritya Nath Mitter . But in this particular case the matter must be decided with reference to the order of remand and the order of this Court was that the amendment should be allowed subject to the Law of Limitation. So it was open to the trial Court to consider the question whether at the time when the amendment was allowed, a new suit on the cause of action would be barred by limitation or not. The Subordinate Judge was clearly wrong in stating that the directions in the judgment of High Court could not be properly allowed. It should be clearly stated that when the Appellate Court makes an order, the subordinate Court is bound to carry it out whether it is right or wrong, and it has no jurisdiction to question the propriety of such an order which can only be corrected by way of appeal from order of the Appel late Court or by review, if that is allowed by law. The Subordinate Judge, however, Was right in his view that according to the order of the High Court it was open to discuas the question as to whether the claim under amended plaint was barred by limitation on the day when the amendment was made. The Subordinate Judged however, did not take into consideration the question as to when the cause of action against defendants Nos. land 2, sureties of the defendant No. 3, arose. It is contended on behalf of the respondents that according to the bond of suretyship, the plaintiff's right to sue the sureties arose only after his failure to realize his dues from the principal debtor, namely, the defendant No. 3. That failure happened some time in 1914, and the amendment having been made in May, 1923 was well within 12 years of the accrual of the cause of action. If that is so, the plaintiff b claim under the amended plaint is clearly within time and he is entitled to have the reliefs claimed if the other issues in the case are found in his favour. The order of remand made by the District Judge will, therefore, stand and the case remitted to the trial Court for decision according to law. The costs of this appeal will abide the result--hearing fee being assessed at two gold mohurs.