NIZAM-U-DDIN Vs. ABDUL AZIZ

JUDGEMENT

(1.) THIS was a suit to recover a certain sum of money under somewhat peculiar circumstances. The plaintiff says that he sold a decree to one Kali Prasad on the terms that Kali Prasad should retain out of the purchase money a sum of Rs, 500, the object being that Kali Prasad should go security to that extent for the plaintiff. Kali Prasad sold the decree to Abdul Aziz. It is suggested that the reason for this second sale was that Kali Prasad could not give the security himself, and he accordingly sold the decree to Abdul Aziz on the same terms. The plaintiff then says] that neither Kali Prasad nor Abdul Aziz ever went security, and consequently he became entitled to recover from one or the other of them Rs. 500. He made both parties defendants to the suit. The first court held that Abdul Aziz was liable and dismissed the suit against Kali Prasad. Abdul Aziz appealed. The plaintiff did not appeal, and Kali Prasad was not made party to the appeal. The lower appellate court dismissed the suit against Abdul Aziz, and expressed an opinion that Kali Prasad was really liable. It was however impossible for that court to make a decree against Kali Prasad because he was no party to the appeal. We are now asked in second appeal to make a decree against Kali Prasad or at least to set aside the decree of the lower appellate court. In our opinion we have no power to do so, nor do we think that the lower appellate court could have made a decree against Kali Prasad, The plaintiff, when his suit was dismissed wrongly against Kali Prasad, ought either to have appealed against that dismissal or at least to have taken some steps to bring him on the record. Instead of that the plaintiff allowed the decree to become final. We dismiss the appeal. The respondent Abdul Aziz will have his costs from the appellant. Other parties will abide their own costs.