George Knox and Muhammad Rafiq, JJ.
1. The appellants before us in this second appeal were plaintiffs in the court of first instance. They sued the respondent for a sum of money together with costs. The sum of money, they claimed, was alleged to have arisen out of certain dealings in wheat between the parties. The sum which they sued for was Rs. 3,200. The lower appellate Court went into the accounts and gave the appellants a decree for Rs. 374-0-6 with proportionate costs. Against this decree the appellants have brought the present appeal. In the memorandum of appeal they have raised several pleas. One of these pleas, namely, plea No. 6, has been abandoned, and the pleas urged before us really resolve themselves into two, the first being that the lower appellate Court was wrong in debiting the appellants with the amount of a rukka dated the 7th of December, 1903, inasmuch as the claim on that rukka was barred by limitation.
2. The second point was that the account books produced by the respondent before the lower appellate Court had not been proved according to law. Before dealing with this we would note that the third plea in the memorandum of appeal is a plea calculated to get behind a finding of fact based upon evidence and of this we can take no account in second appeal. The second plea, which was to the effect that the lower court ought to have passed a preliminary decree under Order XX, Rule 16 of the Code of Civil Procedure, is not entitled to any weight. We agree with the learned Judge of the court below that this was not a case in which a preliminary decree was required.
3. As regards the action of the lower court with reference to the rukka, the contention was that the court ought to have in the present case applied the provisions of the Indian Limitation Act of 1908 without any reference to the provisions of the Punjab Act No. I of 1904. Reference was made to Dicey on the Conflict of Laws, Rule 118, page 711. But the learned advocate overlooked altogether in his argument the provisions contained in the Code of Civil Procedure, vide Order VIII, Rule 6. This order and rule apply equally as law in these provinces as in the Punjab in suits for recovery of money. The defendant can claim to set off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff. Without going any further into the contention raised by the learned advocate, the sum due on the rukka was a sum which the defendant, if he had sued in the Punjab, could have recovered by law from the plaintiff.
4. As regards the plea relating to the account books, we notice that the appellants, when they filed their objections in the lower appellate Court, filled the roll of respondents in that court, and they never objected that the account books had not been proved. We understand that the respondent went into the witness box and as a matter of fact did prove the account books. This plea also fails. The appeal fails and is dismissed with costs.