1. This appeal arises out of a suit brought by Panna Lal and Shiam Lal against Kashi Prasad, Manni Lal and others for money. The suit was decreed against both. The defence of Kashi Prasad was that he and Manni Lai had been partners in a Commission Agent business and that the partnership had been dissolved, when upon, according to an arbitration, Manni Lal undertook to pay off this account and gave two hundis in discharge of his share of the debt due by both of them. The decree was against both. Kashi Prasad has appealed on the ground that he was not liable but that Manni Lal alone was liable. He urged.
(1) that the hundis were not given in discharge of the debt on the gur account, but were on entirely separate loan account;
(2) that as decided by the arbitrators, Manni Lal alone undertook to be responsible for the payment of the hundis.
2. Both the Courts have found that the hundis were given in satisfaction of the gur account and were not evidence of a separate transaction. They have also found that as the hundis were inadmissible in evidence under Section 35 of the Indian Stamp Act because they were improperly stamped, Panna Lal was entitled to go back and prove his case on the original gur account in discharge of which these hundis had been given.
3. In appeal the facts cannot be controverted but it is argued that the Court was not entitled to allow the plaintiffs to go behind the hundis. This point is established, at any rate so far as this Court is concerned in a long series of rulings, of which an example may be given in Ram Sarup v. Jasodha Kunwar 13 Ind. Cas. 138 : 34 A. 158 : 9 A.L.J. 72, in which it was held, that if a creditor has a cause of action for the recovery of money, for which his debtor has executed a promissory note, separate from and independent of the note, he can recover upon such cause, in case the note for any reason cannot be put in evidence.'
4. The last point taken was that, inasmuch was the plaintiff had given a receipt in full satisfaction of the debt, he was not entitled to go behind it. This point was not raised in the Court below, and, therefore, we cannot allow it to be argued here. On the findings, therefore, the appeal fails and is dismissed with costs including in this Court fees on the higher scale.