1. The main question argued is whether this suit is sustainable or is barred by Section 47 of the Civil Procedure Code; and I, therefore, follow the lower Courtis in dealing with it with reference only to the plaint and a few documents necessary to its understanding, assuming the truth of the allegations made.
2. In 1912, the late Zamorin of Calicut arranged with his Bank,, the defendant-appellant, that it should satisfy a decree, in connection with which his property had been attached. The Bank, however, did not satisfy the decree, but obtained an assignment of it and afterwards recouped itself for the amount spent in doing so by deducting it from the Zamorin's next instalment of maliltana or revenue, which was received to its credit in March-April 1912. The pending execution petition was, therefore, disposed of on 1st April, and the Bank on 28th June obtained recognition of its assignment in the order in Exhibit U. The present Zamorin, the plaintiff-appellant, succeeded on 30th December. The Bank had already applied for execution of the assigned decree and obtained it in spite of plaintiff's opposition and an unsuccessful attempt by him to obtain a review of the order of 28th June 1912. He, therefore, was constrained to pay the Bank the decree amount, though it had already once paid itself the amount from the balance in its hands. The plaint also refers to facts in explanation of plaintiff's predecessor's failure to oppose the assignment application, and the Bank's application for execution, and they will be the subject of enquiry at the trial. But the material allegations are those stated. On them plaintiff claims repayment of the amount of his last payment to the Bank and of the legal expenditure incurred in resisting its apparently unjust demand.
3. The Bank's first contention, which the Court of First Instance adopted, is that this suit is simply to recover money paid in execution and is, therefore, unsustainable. It is supported on the grounds that the original decree-holder and the Manager of the Bank, with whom the arrangement was made, are not parties and that no contract by the Bank to satisfy the decree is alleged. But even it the parties referred to were necessary, and I cannot see how they were (since deceit is not imputed to the decree-holder at all or to the Manager personally except in the alternative), their absenpe would not change the character of the suit; for they could, if necessary, have been impleaded. And in fact in paragraphs 5 and 6 of the plaint, an agreement by the Bank to satisfy the decree, in pursuance of which it recouped itself from the Zamorin's balance, is set up clearly. The suit, I agree with the lower Appellate Court, is framed as, one for damages for the Bank's breach of its agreement with him.
4. The main objection to it is then that it involves adjudication on a question, which could have been raised in the assignment proceedings under Section 47 of the Civil Procedure Code, and, therefore, cannot be raised now, whether the decree had been satisfied at their date; To this objection two answers are available, firstly, the decree had not been satisfied and no plea of satisfaction was available to the Zamapiu, since his arrangement for satisfying it had failed and he could not be expected to adopt the transfer to the Bank as made benami for his benefit, when it was not taken with his authority, cases such as Annaliattula Venkataratnam. v. Annabattula Nayudu 28 Ind. Cas. 906 being distinguished on that ground. Secondly, if it could be held that a satisfaction, which the Zamorin was bound to adopt, had taken place, there was still, owing to the decree-holder's and the Bank's failure in their duty under Order XXI, Rule 2, to have that satisfaction recorded, no satisfaction which could be proved; and authority is clear that a suit will lie in those circumstances. Iswar Chandra Dutt v. Saris Chandra Dutt 25 C. 718; 2 C.W.N. 247; 13 Ind. Dec. 470; Krivhnasarm Ayyangar v. Ranga Ayyangar 20M. 369; 7 M.L.J. 71; 7 Ind. Dec. 262; Raghava lyengar v. Athanambalam 23 Ind. Cas. 405; (1914) M.W.N. 174. No doubt in these cases, the proceedings, in which the plea of satisfaction should, it was contended, have been adjudicated on, were directly for execution, not for recognition of an assignment and for execution under Order XXI, Rule 16. But the principle involved is not affected by that or by the fact that the petition, on which recognition of the assignment was, granted, irregularly contained no prayer for execution by the assignee. In these circumstances, the conclusion of the lower Appellate Court, that the suit as framed is sustainable against the Bank, must be sustained.
5. The remaining question argued arose because the Bank's defence, as disclosed in its written statement, was to some extent that responsibility for what had occurred lay with the Manager already referred to, who bad acted outside the scope of his authority and as the agent of the Zamorin, his uncle. Plaintiff, who had brought his suit against 'the Bank by its Manager,' then applied, not for the addition of the latter personally as a party, but only for the amendment of the plaint by insertion of a prayer for relief against him in the alternative. The Subordinate Judge refused this on the ground that the application was unduly delayed, and I should agree that it was so. But the lower Appellate Court allowed it, because paragraph 19 of the plaint already asked for relief against the Manager personally, and no real change was involved. The question is whether this part of its judgment is right. Now the Bank alone is before us, and I have felt some doubt as to whether it can be permitted to take objection to a decision, which cannot affect the merits of its defence and which the Manager will be able to attack, when and if it operates to his personal prejudice. But the prevailing consideration, in consequence of which I proceed, is that this decision is based on a fallacy, which will probably cause confusion during the trial and involves misconception as to the Bank's position. The Bank is a limited company; and it has not been suggested that it can sue or be sued in the name of its Manager under any special enactment. It then can be sued only in, its own corporate personality; and the statement in the plaint that it is sued by its Manager is, if it amounts to more than that it is proposed to serve him, meaningless. Campbell v. Jackson 12 C. 41. 6 Ind. Dec. 28. It was, therefore, not open to the lower Appellate Court to treat the Manager as a party already, on the record, who could be made personally liable, as though the case were similar to that of a minor sued by his guardian. The amendment asked for, insertion of a prayer for relief against a person, who was not a party, could in the circumstances have had no legal result and should have been refused on that ground. It is of course still open to plaintiff to apply for it again, applying also to have the Manager impleaded personally. As to the prospects of such an application at this stage, it is unnecessary; to express an opinion.
6. The result is that the appeal fails and is dismissed, except as to the direction in the Lower Appellate Court's decree relating to amendment. The appeal is allowed in respect of this direction, which must be expunged from the decree. In the circumstances and in view of the extent to which the appeal succeeds, respondent will pay appellant's costs in this Court, costs in the lower Courts will be costs in the cause.
7. In passing this decision and with reference to the lower Court's mistaken view of the Manager's position, I observe that the trial to be held will be concerned only with the Bank's liability and that the conduct of the Manager can affect it, only in so far as he may be found to have acted within the scope of his authority. This observation is necessary owing to the attempt made in the plait to use language reconcilable with the claim to relief being against him and the Bank in the alternative. As this claim is unsustainable, so long as he is not a party, it may be advisable, for the Subordinate Judge to insist on that language being made unambiguous by insertion of an amendment distinctly alleging that only such conduct of the Manager, as was within the scope of his authority, is in question.
8. I agree.