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Sreekakulam Ramiah Setti Vs. Kapulooru Chinniah and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in33Ind.Cas.623
AppellantSreekakulam Ramiah Setti
RespondentKapulooru Chinniah and anr.
Cases ReferredAkilandam Pillai v. Chinnaswami Moopan
Excerpt:
civil procedure code (act v of 1908), section 11 - suit for price of jewels sold--part payment to vendor's agent not pleaded--decree--subsequent suit for recovery of amount paid, whether barred--liability of agent--high court, whether can interfere suo motu. - .....moopan 13 ind. cas. 649 : 11 m.l.t. 201 is different on its facts from the present case. i, therefore, think that the claim as against the 1st defendant fails.2. it is also found that the 2nd defendant to whom the plaintiff paid the money for payment to the 1st defendant, did not so pay to the 1st defendant. on that finding the plaintiff is entitled to a decree against the 2nd defendant for the money paid to him. although the plaintiff has not put in a petition to revise the decree of the lower court dismissing the suit against the 2nd defendant, inasmuch as all of them are parties to the petition of the 1st defendant i am entitled to pass the proper decree in this case. there will, therefore, be a decree for the plaintiff against the 2nd defendant with costs here and in the court below.....
Judgment:

Srinivasa Aiyangar, J.

1. The plaintiff sues to recover a sum of money which he paid to the 2nd defendant as part payment of the price of jewels sold by the 1st defendant to him. The 2nd defendant is the agent of the 1st defendant. Previous to this suit the 1st defendant had filed a suit against the plaintiff for the price of the very same jewels, and in that suit a decree was passed for the whole value of the jewels without giving credit to the plaintiff for the sum which is now found to have been paid by him in part payment of the price of those jewels. I do not think that the plaintiff is entitled to claim in a separate suit the amount which he paid and I hold that the previous decision bars the present suit. The case of Akilandam Pillai v. Chinnaswami Moopan 13 Ind. Cas. 649 : 11 M.L.T. 201 is different on its facts from the present case. I, therefore, think that the claim as against the 1st defendant fails.

2. It is also found that the 2nd defendant to whom the plaintiff paid the money for payment to the 1st defendant, did not so pay to the 1st defendant. On that finding the plaintiff is entitled to a decree against the 2nd defendant for the money paid to him. Although the plaintiff has not put in a petition to revise the decree of the lower Court dismissing the suit against the 2nd defendant, inasmuch as all of them are parties to the petition of the 1st defendant I am entitled to pass the proper decree in this case. There will, therefore, be a decree for the plaintiff against the 2nd defendant with costs here and in the Court below and the suit will be dismissed as against the 1st defendant with costs here and in the lower Court.


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