1. The Subordinate Judge was wrong in holding that the previous decision of this Court disposed of Issue No. 1. The first part of the latter runs thus ' Whether Nachiappa Chetty and 8th defendant executed plaint promissory note and received consideration from plaintiff: 'and the question of whether the promissory note was supported by consideration was not considered at all by the learned Judges.
2. We must, therefore, call for a finding on the evidence on record on the question of whether the plaint promissory note was or was not supported by consideration. The finding should be submitted in two months from this date, and seven days will be-allowed for filing objections.
3. In compliance with the order contained in the above judgment, the Judge of the Temporary Subordinate Court of Ramnad at Madura submitted his finding that no consideration was paid by the plaintiff and that, therefore, nothing was due to him thereunder.
4. These appeals and the memorandum of objections filed by the 1st respondent in Appeal No. 112 of 1916 came on for final hearing on the 30th January 1918.
5. Mr. T. Narasimha Iyengar and the Hon'ble Mr. T. Bangachariar, for the Appellants.--The plaintiff's suit is not maintainable. No consideration passed from him. Though consideration need not necessarily proceed from the promise, in this case the real promise is himself one of the promisors. The latter could not institute the suit against himself. His benamidar, the plaintiff, cannot claim to be in a better position.
6. Mr. C. V. Ananthakrishna Aiyar, for the Plaintiff Respondent.--Plaintiff, as the holder of the not, was entitled to maintain the suit. The fact that the money belonged to 8th defendant is not material. Besides 8th defendant was different from the firm which was the real promisor,
7. This case has come up to this Court more than once and has given rise to differing comments on the wording of the judgments of this Court. It is, therefore. desirable to state once again the facts of the case, so that there may be no occasion for further misunderstanding.
8. The plaintiff sued on a promissory note standing in his name. His case was that he paid money for the note. The executants were one Nachiappa Chetty who, it was alleged, was the agent of the firm of which defendants Nos. 1 to 5 were said to be the partners, and the 8th defendant who, it was alleged, was the agent and partner of a firm of which defendants Nos. 6 to 10- were the partners. Defendants Nos. 1 to 5 stated that no money came from the plaintiff and that the real lender was the 8th defendant, between whose firm and the firm of defendants Nos. 1 to 5 the loan was adjusted. In this state of the pleadings, the first issue was raised which in substance involved the decision of two questions, (a) whether plaintiff advanced the money and was consequently entitled to sue and (6) if not, whether the plaintiff being a benamidar for the 8th defendant was entitled to maintain the suit. On the first occasion the Subordinate Judge held that plaintiff being a name-lender was not entitled to maintain the suit. He also found that there was an endorsement to the 8th defendant by the plaintiff, and that the note went out of' the possession of the plaintiff.
9. Sankaran Nair and Oldfield, JJ., who heard the appeal on the first occasion held ' that the note had left the hands of the plaintiff. On the question of the plaintiff's right of suit, they held that although he may only be a benamidar, his right of suit was not lost. The case was remanded to the Subordinate Judge. On this second occasion, the Subordinate Judge held that the question of the payment of consideration by the plaintiff was res judicata by virtue of the decision of Sankaran Nair and Oldfield, JJ. We heard the appeal from this latter judgment of the Subordinate Judge. We disagreed with him on the question of res judicata and remanded the suit for trial. In our judgment we stated the issue in these terms: Whether the plaint promissory note Was or was not supported by consideration.' But it is clear from the previous portion of our judgment that we did not intend to vary the issue originally framed ; and we stated specifically that the trial of the first part of the first issue originally framed was not barred by res judicata.
10. On the present occasion, the Subordinate Judge has some to the conclusion that plaintiff paid no portion of the consideration. Mr. Anantakrishna Aiyar does not seriously attack this finding ; and we think the Subordinate Judge's decision is borne out. by the evidence on the record.
11. What the learned Vakil for the plaintiff urges is that even though the money might have belonged to (ha 8th defendant, so long as the plaintiff is the holder of the note, he is entitled to sue for its recovery. We are unable to agree with him. The 8th defendant who is the real promisee is himself a co-promisor. If the note had been executed to the 8th defendant by himself and by Nachiappa Chetty, the 8th defendant would not have been entitled to maintain a suit. No authority to the contrary has been cited to us. The definition of the term consideration excludes the idea that a promisor can also be the promisee. Mr. Anantakrishna Aiyar's suggestion that the 8th defendant was different from the firm which was the promisor has not been raised or tried hitherto and we cannot allow that question to be argued.
12. If the 8th defendant as promisee of a note of which he is the promisor cannot maintain a suit, it also follows that the plaintiff who is his benamidar cannot maintain the suit. A benamidar cannot be in a better position than the real owner.
13. In this view, the suit brought by the plaintiff must be dismissed with costs. In the result we accept the finding of the Subordinate Judge, allow Appeals Nos. 112 and 150 of 1916 and dismiss the suit with costs against the plaintiff throughout, subject to plaintiff's right to recover costs awarded to him in Appeal No. 319 of 1912.
14. The memorandum of objections is dismissed without costs. The appellants in Appeal No. 112 of 1916 must pay the costs of respondents Nos. 2 to 4.