Ghose and Rampini, JJ.
1. This appeal arises out of a suit for recovery of certain money upon a hundi bearing date the 11th September 1892, executed by the defendant No. 1 Charles Frederic Carleton in favour of the plaintiff. It appears that, at the time of the execution of the hundi, Carleton was the owner of the Byria factory, and that the plaintiff had purchased at an execution sale the holding of a certain raiyat, which Carleton was anxious to buy from him, the plaintiff. Carleton, However, was rather short of money then, and he borrowed the amount required for the purchase of the property by the execution of the hundi in question. No conveyance of the property, however, was executed by the plaintiff at that time, for reasons to which it is not necessary for us to refer. Subsequently, the Byria factory, with all the lands appertaining to it, was transferred by Carleton to the other defendant, Hudson; and the correspondence, to which our attention has been called by the learned Vakils on either side in the course of the argument before us, shows distinctly that the land, which it was arranged should be conveyed by the plaintiff to Carleton, came into the hands of Hudson, and he held it for the purposes of raising indigo on it.
2. The suit, with which we are now concerned, was a suit instituted by the plaintiff against both Carleton and Hudson; and the relief that the plaintiff asked for was as against both the defendants. The Court of First Instance, however, held that there was no cause of action, so far as the defendant Hudson was concerned, and that the decree should go against Carleton alone; and a decree was accordingly made. From that decree, the defendant No. 1, Carleton, appealed, and one of the grounds that was set out in his petition of appeal to the Lower Appellate Court was that, inasmuch as he had sold his right and interest in the Byria factory, together with the debts due by him to the defendant No. 2, Hudson, he (the appellant) could not be held liable for the debts due to the plaintiff, and that the liability was in the proprietor of the factory. The Subordinate Judge, before whom the appeal came on for trial, was of opinion that, having regard to the provisions of Section 559 of the Code of Civil Procedure, Hudson should be made a party respondent to the appeal, be not having been made a party to it by the defendant No. 1. Hudson was accordingly made a party, and the Sub-Judge in dealing with the merits of the case held that the defendant Hudson was liable to pay the plaintiff the money claimed. He, accordingly, modified the decree of the Court of First Instance in this wise, namely, that a decree should be made against Hudson for payment of the money claimed with costs, and that, if by execution of such decree, the plaintiff be unable to realise the whole of the decretal amount from him, then the defendant No. 1 should be made liable for the balance.
3. The appeal before us is by the defendant No. 2, Hudson; and it has been urged by the learned Vakil on his behalf that inasmuch as no appeal had been preferred by the plaintiff against the decree of the Court of First Instance, dismissing his claim as against the defendant, Hudson, the Subordinate Judge was wrong in law with reference to the provisions of Section 559 of the Code of Civil Procedure, in making him a party respondent to the appeal preferred by the defendant No. 1. It has been further contended that inasmuch as the suit of the plaintiff, so far as the defendant No. 2 is concerned, has been based upon the allegation that the defendant No. 1, when he sold the factory to the defendant No. 2, deposited with the latter the amount covered by the hundi, and gave instructions to him to pay that money to the plaintiff, and inasmuch as that allegation has not been held by the Subordinate Judge to be proved, and also, inasmuch as the documents referred to in the judgment of the Lower Appellate Court do not warrant the conclusion at which the Subordinate Judge has arrived, the decree passed by him is bad in law.
4. In support of the first contention raised before us, the learned Vakil for the appellant has relied upon the case of Atma Ram v. Balkishen (1883) I.L.R, 5 All., 266, as showing that the Subordinate Judge ought-not to have added Hudson as a party respondent when no appeal had been made by the plaintiff against the decree of the Court of First Instance. This case, however, has been considered in a recent case before this Court, namely, the case of Upendra Lall Mukerjee v. Girindra Nath Mukerjee (1898) I.L.R., 25 Cal., 565, where a Division Bench of the Court, disagreeing with the view expressed by the Allahabad High Court in Atma Ram v. Balkishen (1883) I.L.R., 5 All., 266, came to the conclusion, in circumstances somewhat similar to those in the present case, that it is quite open to the Appellate Court, with preference to the terms of Section 559 of the Code, to add a party as respondent to an appeal when no appeal had been made against him. We must confess that the matter is not altogether free from doubt; but having given it our best consideration we must say that our doubt is not so very strong as to necessitate our differing from the view expressed in the case of Upendra Lall Mukerjee v. Girindra Nath Mukerjee (1898) I.L.R., 25 Ca1., 565; and we think it is difficult to say that the defendant Hudson was not interested in the result of the appeal preferred by Carleton, or that his presence in that appeal was not necessary for the due adjudication of all the points arising in it. We might, in this connection, also refer to some of the observations of this Court in the case of Manickya Moyee v. Boroda Prosad Mookerjee (1882) I.L.R., 9 Cal, 355 where, in a case where the appeal was preferred; by the plaintiff, and the plaintiff omitted the name of one of the necessary defendants from the category of respondents and this Court in appeal thought it necessary to add him as a party respondent, the learned Judges observed that they had the power to direct that person be made a party to the appeal 'inasmuch as the mortgagee respondent' (that is, the person against whom the appeal had been preferred) 'has in a way a right to relief over against him, and it is proper that all questions in dispute should be settled so as to prevent as far as possible further litigation.' It seems to us in this case that it was necessary for the purpose of settling all questions in dispute between the parties, and with a view to prevent future litigation in relation to the same matter, to make Hudson a party respondent to the appeal preferred by the defendant No. 1 to the Lower Appellate Court. We accordingly overrule the first objection.
5. With regard to the other point raised before us, no doubt the main allegation upon which the suit was brought, so far as the defendant No. 2 was concerned, was that defendant No. 1, while selling to the defendant No. 2 the Byria factory, placed in his hands the money covered by the hundi, and instructed him to deliver the same to the plaintiff. We do not know whether there is any evidence upon this record in support of this allegation; but certainly the Subordinate Judge has not come to any finding upon it. What he does find is practically that the defendant No. 2 took upon himself the liability of paying the money due under the hundi to the plaintiff when the Byria factory, with all the lands appertaining thereto, was transferred to him. The letters, however, to which he refers do not by themselves warrant the conclusion at which he has arrived. But we have examined the whole of the correspondence placed before us on behalf of the appellant in this connection; and it seems to us that the letters marked A and B, coupled with what the defendant No. 2, or rather his manager, wrote in reply to the plaintiff, do indicate clearly that the defendant No. 2 did understand that after the transfer had been made to him it was he who had to pay the money covered by the hundi to the plaintiff. That being so, and it being quite clear that the land for the purchase of which this money was borrowed from the plaintiff was indisputably in his possession, though it is alleged in one of the letters that he had given up the land and left it free to the plaintiff to resume possession thereof, it seems to us that in equity the plaintiff is entitled to maintain the judgment which has been pronounced in his favour, namely, that the defendant No. 2 shall be made liable for the money claimed, and that in the event of the whole amount of such money not being recovered by the plaintiff from him, the defendant No. 1 shall be liable for the balance.
6. With these observations we dismiss this appeal with costs.