CHOKALINGA CHETTIAR Vs. DANDAYUTHAPANI CHETTIAR

JUDGEMENT

(1.) The short question for consideration in this Letters Patent Appeal is whether the plaintiff- appellant is entitled to get a decree for the suit amount against defendant 2 along with defendant 1. The plaintiff's suit was for the recovery of the money due under a promissory note executed by defendant 1. Under Ex. B 1, a letter, defendant 2 guaranteed the payment of this promissory note debt. In it, he stated as follows: Kuppuswami Chatty...who executed a pro-note on this date in your favour for Rs. 380 will pay you the principal and the interest amount thereof within three months time. If he does not so pay, I shall have the note assigned to ray name and pay you the principal and interest.

(2.) As the money was not paid either by defendant 1 or 2, the plaintiff instituted the suit out of which this Letters Patent appeal arises against the two defendants and obtained a decree against both of them in the District Munsif's Court of Tiruthuraipundi. On appeal by defendant 2, the learned Subordinate Judge of Tanjore set aside the -decree so far as it affected him and this decree was confirmed by Wallace, J. It was alleged in the plaint that when defendant 1 did not pay the amount within the three months time, information was given to defendant 2 and when he was asked to have the aforesaid promissory note assigned in his name he did not pay the money. This allegation was denied by defendant 2 in his written statement. As there was no clear finding as to which party was responsible for the breach of the conditions in Ex. B-1, the learned Judge before deciding the case called upon the lower appellate Court to submit a finding on the following issues: Has there been any breach of the contract set out between the plaintiff and defendant 2 in Ex. B-l? And if so, which of these two parties is responsible for that breachs.

(3.) The finding submitted was that defendant 2 was called upon by the plaintiff to pay the amount under Ex. B and to take over the promissory note; but that he failed to do so; and that defendant 2 is solely responsible for the breach of the contract in Ex. B-l. This finding was not challenged before the learned Judge. On this finding, the learned Advocate General argues that the appellant is entitled in law to get a decree against defendant 2 also.