1. This suit is brought on a promissory-note executed in favour of the plaintiff by the second defendant, who was then the Dewan of the father of the first defendant. The consideration for the note was an advance of money to the second defendant to enable him to pay road-cess on behalf of the first defendant. In the Munsif's Court it was held that the second defendant had an implied authority from the father of the first defendant to raise the money, and that his action had been ratified by the first defendant. The suit was accordingly decreed against the first defendant. On appeal to the Judicial Commissioner this decree was set aside on the findings that the second defendant had no authority to borrow money on behalf of the first defendant and that the acts necessary to constitute a ratification of the second defendant's action by the first did not occur. A Rule has been issued calling on defendant No. 1 to show cause why this order should not be set aside. The question whether defendant No 2 had authority to bind defendant No. 1 is one which the Court had jurisdiction to decide, and we cannot interfere with its decision on revision. It is argued before us, however, that the question of ratification was an issue in the case, and that the Judicial Commissioner failed to exercise his jurisdiction to decide it. The question of ratification was not expressly set-out as an issue, but ES it is independent of the question of the authority of the second defendant, it must be regarded as an issue by itself. The finding of the trying Court is, that on demand being made of the first defendant, he told the second defendant to pay the amount claimed out of his rent collections. The Appellate Court found that the question whether this occurred was immaterial, that there would have been ratification if certain circumstances had occurred which did not in fact occur, and that the facts found by the first Court constituted no admission that the money ordered to be paid was to come out of the pocket of the first defendant. The law laid down by the Judicial Commissioner cannot be accepted as correct but, looking at the facts of the case, I cannot doubt that he had the question of ratification before his mind, and that he in fact decided it adversely to the petitioner. I am of opinion, therefore, that he has not declined jurisdiction on this matter, and that he has not acted with material irregularity within the meaning of Section 115 of the Code, and, consequently, that this Rule should be discharged.
2. The Court being divided in its opinion, the opinion of the Senior Judge prevails.
3. The Rule is discharged. No order as to costs.
D. Chaiterjee, J.
4. I regret very much that I am unable to agree with nay learned colleague in the view he has taken of this case.
5. The plaintiff expressly alleged in his plaint that the defendant No. 1 had admitted the debt after the death of his father. This was denied by the defendant No. 1. The case of the plaintiff was that even if the defendant No. 2 had no initial authority to bind the Raja the latter had, when a demand was made of him for the debt, directed his servant, defendant No. 2, to re pay the debt from the collections of his estate. The learned Munsif found that this was so, and that there had been a clear ratification or admission of the debt. The learned Judge thinks that this issue of ratification was immaterial and does not come to any finding upon it. The reason given is that it would have been ratification if the Raja had directed payment from his pocket, but could not be ratification as the money was directed to be paid from the collections of his estate. This view of law is decidedly erroneous, but that alone would not, perhaps, by itself give us jurisdiction to interfere in revision. Here, however, the learned Judge has not come to a decision on the facts alleged to have occurred, and has thereby left undecided the most important issue in the case. He has, I think, by so doing, not only acted with material irregularity but virtually refused to exercise a jurisdiction vested in him by law. The decision of the Privy Council in the case of Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6 : 11 I.A. 237 has been relied on as negativing our jurisdiction to inter ft re in this case. Their Lordships held in that case that a Court deciding a question of law wrongly does not exercise jurisdiction illegally or with material irregularity. The judgment of the Judicial Committee does not furnish any test, however, for determining under what circumstances a Court may be said to have acted illegally or with material irregularity. See Dwarka Nath Sen v. Kishori Lal Goswami 11 C. L.J. 426 : 14 C.W.N. 703 : 6 Ind. Cas. 549. In the case of Sidharath Rai v. Anantram 8 Bom. L.R. 567 the Bombay High Court (Jenkins, C.J., and Aston, J.) held that where a Court refuses to set aside an ex parte decree on an erroneous view of the law of limitation, it fails to exercise a jurisdiction vested in it by law. In the case of Rudrappa v. Narsing Rao 29 B. 213 : 7 Bom. L.R. 12 the same Court (Jenkins, C.J., and Batchelor, J.) held that where the only issue tried by the lower Courts is not an issue upon which the dispute could be adjudicated upon, it is an exercise of jurisdiction with material irregularity. So the returning of a plaint without warrant of law has been held to be an acting illegally in the exercise of jurisdiction: Zamiran v. Fateh All 32 C. 146.
6. I think these are sufficient authorities on which we can hold that the action of the Court below is within the mischief of Section 115 of the Civil Procedure Code.
7. I would, therefore, make the Rule absolute and send the case back to the lower Court for a proper decision of the issue of ratification.