1. The plaintiff appeals from a decree dismissing his suit on the preliminary ground that his claim is res judicata by the decision in a previous suit (O.S. No. 574 of 1924) in the Court of the District Munsif of Tenkasi.
2. That suit was brought by the present plaintiff as endorsee of a promissory note executed by one Lakshmana Nadar-not now a party-to Arunachala Nadar, the present defendant 1, and endorsed by defendant 1 to the plaintiff. He sued both the maker of the note and endorser and sought a decree against both. The maker denied the genuineness of the note and the endorser, while he admitted receipt of Rs. 1,768 from the endorsee (the plaintiff) for the endorsement, pleaded that he was an unnecessary party to the suit and that no decree should be passed against him. The District Munsif found that the note was not executed by the alleged maker, that the present defendant 1, (then defendant 2) the endorser, received consideration, which in fact was admitted by him but that there was no causa of action against the endorser. In para. 16 he dealt with the second issue, which was whether defendant 2 was liable for the claim and said that:
There is absolutely no cause of action against defendant 2. In the plaint it is merely stated that in case the money is not recovered from defendant 1, defendant 2 is liable for the same as he transferred the promissory note to the plaintiff. The cause of action against defendant 2 will only arise on the date of the transfer and not on the date of the promissory note, In my opinion the plaint does not disclose any cause of action against defendant 2. The plaintiff's remedy, if any is only to file a separate suit. I therefore find that defendant 2 is not liable for the claim on the promissory note.
3. In short, the District Munsif quite wrongly, of course, held that in that suit on the promissory note the present plaintiff could not sue on the endorsement of a later date but must bring another suit on it. On that ground the plaintiff's suit was entirely dismissed. Both the lower Courts now hold that this decision being on the preliminary point that this plaintiff's claim could not be then heard, does not matter, as the suit was eventually dismissed and therefore irrespective of this ground of dismissal the plaintiff cannot sue again. For this, the remarks of Lord Phillimore in Fateh Singh v. Jagannath Baksh Singh , are quoted by the District Munsif and other equally inapplicable authorities are quoted by the learned Subordinate Judge. The truth of the matter was that the District Munsif in the former case instead of hearing and deciding the case before him, refused to do so on what he considered to be a preliminary point, that there was no cause of action for the plaintiff to enforce the endorsement in that suit, but he must sue again. How ever wrong that decision was-undoubtedly it was quite wrong-it is binding between these parties and it is clear that the liability on the endorsement was never heard and decided. That is sufficient to dispose of the ground on which the suit has been dismissed.
4. The decrees of both the lower Courts are reversed and the suit must be remanded to the District Munsif to be disposed of according to law. The appellant will have refund of the court-fees in this Court and will get his costs in the lower appellate Court and in this Court irrespective of the final result of this suit. The District Munsif will provide for the costs incurred in his Court in the revised decree to be passed.