1. The plaintiff sold certain goods to the 3rd defendant. The 3rd defendant did not pay the price of the goods. Part of the goods subsequently passed into the possession of the 1st and 2nd defendants respectively. In a case of cheating instituted by the plaintiff against defendants Nos. 1 to 3 the goods were taken possession of by the Police and sold, and the price of the goods in the possession of the 2nd defendant was subsequently paid over to him after the termination of the case. The plaintiff instituted the present suit to recover the value of all the goods against all the defendants Nos. 1 to 3. He did not challenge the validity of the sale to the 3rd defendant, and the suit has proceeded on the footing that the property in the goods passed to him.
2. Both the lower Courts have passed a decree against the 2nd defendant, the appellant before us, for the value of the goods which had passed into his possession and were sold while he was holding them. The plaintiff alleged in his plaint that the 1st and 2nd defendants had made themselves sureties for the payment of the price of the goods by the 3rd defendant. But both the lower Courts have held that the contract of suretyship has not been proved but a decree has been passed against the 2nd defendant on the ground that he was in possession of property belonging to the 3rd defendant, who is bound to pay the price of the goods to the plaintiff. It is impossible to sustain this judgment. The plaintiff's right to the price was only against the 3rd defendant. No relief can be given against other persons simply on the ground that property belonging to the 3rd defendant was in their possession. No doubt, after obtaining a decree against the 3rd defendant the plaintiff would be entitled to attach any properly belonging to him in the hands of others. The Subordinate Judge is entirely wrong in holding that any relief could be given against third persons for the price of goods sold to the 3rd defendant.
3. The Lower Courts did not give the plaintiff a decree against the 3rd defendant for the value of the goods which had passed to the possession of the 2nd defendant. The plaintiff did not ask the lower Appellate Court to make the 3rd defendant a party to the appeal in order that a decree might be passed against him for the whole of the price of the goods sold to him. We are asked to give the respondent time to make the 3rd defendant a party to the second appeal. We might ,have acceded to this request, if he had been made a party to the appeal in the lower Appellate Court, but as that was net done we are unable to grant this request,
4. We must set aside the decree as against the 2nd defendant and dismiss the suit as against him with costs throughout.