1. This is an appeal by the plaintiff from a decision of the learned District Judge of Noakhali, dated the 18th June 1915, affirming the decision of the Munsif at Lakhipore. The plaintiff brought his suit to recover the price of goods sold and delivered to the defendants. The plaintiff is a dealer in oil, salt and other commodities and he supplied the defendants, who were members of a joint Hindu family, with these commodities for the use of their household. The plaintiff set up an adjustment of account in the plaint, but, notwithstanding that adjustment, it is quite clear from the plaint that the suit was brought to recover the price of goods sold and delivered. The Munsif found that the case was a true one but, as the suit was based upon an adjusted account, it must fail because the plaintiff had failed to prove the adjustment of the account. That view, in substance, was confirmed by the learned Judge of the lower Appellate Court. In that view I am unable to agree. It is quite clear that what the plaintiff sued for was the price of the goods that were supplied to the defendants.
2. The other point that is relied upon in the judgment of the lower Appellate Court is this There was a separation in 1315 or 1316 B. S. between the defendant No. 6 and the other defendants. After that date, goods were also supplied to the defendants and payments were made to the plaintiff by the defendants other than the defendant No. 6 : but no specific appropriation of the money so paid was made by the defendants when they paid to the plaintiff. The learned District Judge considers that, as the payments were made by the defendants other than the defendant No. 6, the plaintiff had no right to appropriate the payments within the meaning of Section 60 or Section 61 of the Indian Contract Act, There is nothing to support that suggestion. On the contract, each of the defendants including the defendant No. 6 was liable to pay the whole of the price of the goods ordered prior to the separation of the defendant No. 6 and the payment by the defendants other than the defendant No. 6 was a payment by the debtor within the meaning of Section 61 of the Indian Contract Act. Therefore, under the terms of the section, the plaintiff had the right to appropriate the payments so made as against the statute-barred debts owing to him in respect of the goods sold and delivered prior to the separation of the defendant No. 6. Under the terms of Section 61 of the Indian Contract Act, the payment has got to be appropriated in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitation of suits; and applying those payments so made in discharge of the debts in order of time, the plaintiff is entitled to recover the balance remaining due, which it seems to be common ground would not be barred by limitation.
3. The decree of the lower Appellate Court is accordingly set aside and the case must go back to the Court of first instance for the learned Munsif to find out, after appropriating the payments made under the terms of Section 61 of the Indian Contract Act, what sums remain due to the plaintiff in respect of the price of the goods sold and delivered to the defendants and which sums are not statute-barred after appropriating the sums already paid under the terms of Section 61 of the Indian Contract Act. Costs will abide the result of the re-hearing by the first Court.
4. The cross-objection is not pressed and is accordingly dismissed. We make no order as to the costs of the cross-objection.