1. This is an application for revision under Section 25, Small Cause Courts Act, by the defendant, against a decree passed by the learned Judge, Small Cause Court at Cawnpore. The suit which gave rise to the revision was brought by the plaintiff opposite party for recovery of Rs. 394 and interest on the allegation that the parties to this case had agreed to take a joint contract from the Public Works Department at Jhansi, that the plaintiff paid Rs. 394 to the defendant, who was to contribute an equal amount and to deposit the whole as security in case the contract was given, that the money was deposited in the Public Works Department but the contract was not obtained and that the money was returned to the defendant, who is liable to refund what had been paid by the plaintiff. The plaint goes on to allege that four persons, including the parties to this case and one Banerji (the name of 4th person is not material) were concerned in a certain partnership, that a suit for dissolution of partnership was pending in the Civil Court at Jhansi, that Banerji instituted a suit against the parties to this case claiming the sum of Rs, 394, now in question as his, that in that suit the defendant made a statement admitting his readiness to pay it to Banerji or the plaintiff according as the right of one or the other was determined and that the plaintiff agreed to defer his claim till the question of right to the money was decided. The suit brought by Banerji was decided on February 19, 1932, and it was found that Banerji had no claim to the sum in dispute. The suit which has given rise to this revision was instituted on February 9, 1934. A number of pleas were taken by the defendant in contesting the plaintiff's' claim. It was alleged that the Court at Cawnpore had no jurisdiction to try the suit, as the plaintiff had paid the sum in dispute at Jhansi. Limitation was also pleaded. It was also urged that the suit was barred by res judicata. The lower Court over-ruled all these pleas and decreed the plaintiff's suit. The aforesaid three questions have been argued in revision.
2. The question of forum may very briefly be disposed of. The plaintiff, while giving his own evidence, stated that he had handed over the money to the defendant at Cawnpore. This statement has been believed by the lower Court, and I see no reason to do otherwise. This being so, the Court below had jurisdiction to try the suit.
3. As regards the question of res judicata, the written statement has baldly asserted that the suit is barred by res judicata. It does not assert what the issues involved in the Jhansi case were, what the Court decided and how that decision bars the determination of any of the questions in controversy in the present case. No copy of the pleadings or judgment of that case has been produced. In these circumstance I am of opinion that the plea of res judicata cannot be seriously considered and the lower Court was right in repelling it.
4. The important question on which arguments have been addressed in revision is of limitation. It is contended that the period of limitation for the suit is three years to be computed under Article 62 from the date when the money was received. In my opinion the original agreement, under which the plaintiff paid the money to the defendant for deposit in the Public Works Department, was superseded by a subsequent agreement arrived at during the pendency of Banerji's suit. The parties to this case were examined as witnesses. The defendant, who appears to have also been examined in pleadings, stated that the sum of Rs. 394, paid by the plaintiff, was in dispute in the Jhansi case and was also claimed by Banerji, that he could not pay it in both suits and that, though he was ready to pay it, he should not be made to pay till the Jhansi case was decided. As already stated, we do not know how this sum was in dispute in the Jhansi case and how the controversy in that case was settled. It is not stated in the written statement that this sum was credited to the plaintiff in the partnership account, nor is there any proof of that fact. Both the parties to the present case were also parties in Banerji's case, in which it was definitely decided that Banerji had no right to this money. It follows that the plaintiff's title to this money was judicially affirmed. The plaint stated that notice of demand had been served upon the defendant before the present suit was instituted. The defendant has not specifically stated in the written statement that no notice was sent to him. The whole paragraph in which this allegation occurs is denied. The plaintiff's statement as a witness, recorded in this case, is not detailed, and it is in the highest degree, probable that he re-affirmed his allegation in the plaint that he had agreed to accept the offer of the defendant mads in his statement in Banerji's suit that the money might be paid by him after the question of right was determined. All the circumstances point to the conclusion that the understanding between the plaintiff and the defendant was that the defendant be allowed to retain the money as a stake holder till it was judicially decided as to whether the plaintiff was entitled to it. In this view, there was a novation of contract. The present suit having been instituted within three years from the date of decision in Banerji's case, the suit must be considered to be within time. In this view, it is not necessary to consider the alternative ground on which the judgment of the lower Court seems to proceed, viz., that the defendant was a trustee and consequently there was no limitation for a suit by the plaintiff.
5. The result is that this application fails, and is dismissed with costs.