1. This is a defendants' first appeal under paragraph 31 (b) of the Himachal Pradesh (Courts) Order, 1948, against the judgment and decree of the learned Senior Subordinate Judge of Jubbal, dated 17-1-1951.
2. In, execution of a money decree obtained by Jawahar Singh against Mussadi Ram a pro-note dated 18 Bhado 1995 B., for Rs. 3,040/-, carrying interest at 12 per cent per annum, executed by the said Jawahar Singh and Harsukh Das in favour of the said Mussadi Ram, was attached and purchased in a sale by public auction by Ram La'l on 20 Har 2001 B. About two months later, i.e., on 17 Bhado 2001 B., Ram Lal filed the suit giving rise to the present appeal against the aforesaid executants of the pronote, Jawahar Singh an3 Harsukh Das, for recovery of Rs. 3,040/- principal plus Rs. 2,187/- interest at the said rate, totalling Rs. 5,227/-, impleading Mussadi Ram as a pro forma defendant. Jawahar Singh died during the pendency of the suit and his two widows and four minor sons under the guardianship ad litem of one of the widows were brought on record as his legal representatives. Mussadi Ram also died during the pendency of the suit and his son Jai Lal was substituted in his place.
3. After a prolonged and chequered career, the suit was ultimately decreed in toto on 17-1-1951 against Harsukh Das personally and against the assets of Jawahar Singh in the hands of his four minor sons. The present appeal has been filed by Harsukh Das and the minor sons of Jawahar Singh and also by the letter's widows although no decree was passed against them.
4. A preliminary objection was taken on behalf of the plaintiff-respondent that as in the present appeal Sri Thakar Das Advocate appearing for the appellants held no Vakalatnama on behalf of Harsukh Das appellant the appeal was incompetent. It was further contended that the appeal was incompetent as a whole as, according to the learned counsel for the plaintiff-respondent, the decree under appeal was passed jointly against all the appellants. So far as the latter contention is concerned, it has no force because under the decree in question the liability of the various persons against whom it was passed, is several. Even if it were joint, the liability of each of the judgment-debtors would, in view of the provisions of Section 43 of the Contract Act, be both joint and several. It follows, therefore, that in case, the present appeal be incompetent on behalf of Harsukh Das, it would not be incompetent so far as the other defendants-appellants are concerned. That the appeal is incompetent on behalf of Harsukh Das defendant is, in my opinion, correct, and this for the following reasons.
5. For purposes of the present, appeal ;a Vakalatnama was filed by the learned counsel for the appellants on behalf of the legal representatives of Jawahar Singh only but not on behalf of Harsukh Das. It appears that the trial Court passed a decree against Jawahar Singh and Harsukh Das on 29-11-1948, and that on an appeal by the defendants the then Judicial Commissioner remanded the case on. 4-7-1949 for a trial of the whole case de novo. It was in this subsequent trial that the decree under appeal dated 17-1-1951 was passed. For purposes of the said appeal in this Court, which resulted in the aforesaid remand dated 4-7-1949, a Vakalatnama was filed by the learned counsel for the appellants on behalf of Jawahar Singh and Harsukh Das on 10-8-1949. The learned counsel for the appellants argued that he had a right to file the present appeal also on behalf of Harsukh Das under that Vakalatnama. Now, where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument, either in express terms or by necessary implication. -- 'Bank of Bengal v. Ramanathan', AIR 1915 P. C. 121. It will have, therefore, to be seen, whether on a fair construction of the Vakalatnama dated 10-3-1949, the learned counsel for the present appellants could be held to have the authority either expressly or by necessary implication of filing the present appeal. If no such authority can be deduced, it must be held that the present appeal, so far as it purports to be on behalf of Harsukh Das, is incompetent.
6. The relevant provision is Order 3, Rule 4, C. P. Code. Under that provision a pleader can act for any person in a Court, the filing of an appeal being such an act, provided he is appointed for the purpose by that person by a document in writing signed by him or by a person duly authorised. It has already been seen that no such appointment was made by Harsukh Das 'for the purpose' of filing the present appeal. Under Sub-rule (2), however, an appointment remains in force until, inter alia, all proceedings in the suit are ended so far as regards the client. The words 'proceedings in the suit' have been amplified in Sub-rule (3), arid the filing of an appeal has been mentioned amongst the various acts which shall be deemed to be proceedings in the suit. It follows, therefore, that if an appointment has been made in the course of the suit, the pleader so appointed would, be entitled to file an appeal without any fresh Vakalatnama. The basis for this rule obviously is that an appeal, being a continuation of a suit, is a proceeding in the suit. -- 'Pichuvayyangar v. Seshayyangar', 18 Mad 214, and -- 'Mt. Balqis Begam v. Shahzada Muhammad Hamrlam'. AIR 1934 Lah 973(1). It will be noticed that other acts mentioned in Sub-rule (3) are likewise clearly proceedings in the suit. The Vakalatnama dated 10-3-1949 relied upon by the learned counsel for the appellants was, however, not filed in the suit but for purposes of the particular appeal which was filed in this Court from the judgment and decree of the trial Court dated 29-11-1948. It has also to be noted that the present appeal cannot be deemed to be a continuation of the said appeal which resulted in the order of remand dated 4-7-1949. The two appeals are from different judgments and decrees, and, therefore, the purpose for which the learned counsel for the appellants was appointed by means of the Vakalatnama dated 10-3-1949 is not the same which underlies the institution of the present appeal. That being so, he had no authority to file the present appeal on behalf of Harsukh Das. It will be deemed therefore that Harsukh Das has not appealed from the judgment and decree dated 17-1-1951, and that the judgment and decree are binding on him. This appeal will, therefore, be deemed to be an. appeal on behalf of appellants other than Harsukh Das.
7. The first point argued by the learned counsel for the appellants was that the plaintiff-respondent had not acquired title to the pronote in suit. The Negotiable Instruments Act, 1881, was not in force in the State of Rampur Bushahr where the parties belong to and the sale of the pronote in execution of a decree was held. The Act was applied to Himachal Pradesh for the first time on and from 25-12-1948 under the Himachal Pradesh (Application of Laws) Order, 1948. It was therefore argued by the learned counsel that the transfer of the instrument in. question could have only been effected by a sale deed. It was further argued by him that the endorsement on the back of the pro-note made by the execution Court under Order 21, Rule 80, C. P. Code, did not have the effect of such a sale because it did not bear the necessary stamp duty under Article 23 of the Stamp Act: He cited the following rulings: -- 'Nandubai v. Gau', 27 Bom 150; -- 'Rama Iyen v. Venkatachellam', 16 Mad L J 554; -- 'Akhoy Kumar v. Hari Das', AIR 1914 Cal 566; -- 'Venkatarama v. Krishnaswami', AIR 1933 Mad 133 (1) and. -- 'Kamala Kant v. Madhavji', AIR 1935 Bom 343. The last ruling has no application whatsoever for the question, decided there, i.e., whether a co-parcener in a joint Hindu family can sue on a negotiable instrument payable to the deceased, does not arise in the present case. The other rulings are not applicable because they relate to cases of passing of title under the Transfer of Property Act or the Negotiable Instruments Acts, neither of which has any application in the present case.
It was in execution of a money decree that the plaintiff purchased the pronote in suit. Rules 51 and 76 of Order 21, C. P. Code, provide for the attachment and sale of negotiable' instruments. Rule 80 provides for the execution of a document or the endorsement of the party in whose name a negotiable instrument is standing where that is required to transfer such negotiable instrument. As stated above, an endorsement under this rule was made on the, back of the pronote by the execution Court, but this was not necessary since admittedly the provisions of the Negotiable Instruments Act were not applicable. Nor was the execution of any document like a sale deed, as contended by the learned counsel for the appellants, necessary in view of the provisions of Section 2(d) of the Transfer of Property Act. As soon as the plaintiff paid the purchase money, the sale became absolute under Rule 77(2) of the said Order and he became entitled to the interest of Musssdi Ram in the pronote. The argument that the endorsement on the back of the pronote required stamp duty under Article 23 of the Stamp Act has also no force. Firstly, no endorsement was necessary as just stated. Secondly, Article 23 has no application because it relates to a conveyance which under Section. 2(10) of that Act relates to a transfer 'inter vivos' and therefore not to a sale in execution of a decree. It may be added that no certificate of sale as mentioned in Article 18 of the Stamp Act was necessary either, since the sale-was of movable property. I, therefore, hold: that the plaintiff-respondent acquired by purchase in. auction sale the right, title and interest of Mussadi Ram in the pronote in suit.
8. The next point taken by the learned counsel for the defendants-appellants was that the plaintiff-respondent had failed to prove that the pronote in suit was for consideration. The necessity of proving the consideration did not however arise since no issue on that point was framed. It was alleged in paragraph one of the plaint that the pronote had been executed partly in lieu of price of opium purchased by Jawahar Singh and Harsukh Das from Mussadi .Ram and partly in lieu of past outstandings. The defendants Jawahar Singh and Harsukh Das pleaded in their written-statement that the aforesaid plaint paragraph was not admitted because they had paid in full the price of the opium purchased by them. They further asked for details of the price and past outstandings from the plaintiff. Now, this plea of full discharge was equally capable of being interpreted as discharge of the amount due on the pronote or of the amount in respect of which the pronote purports to have been executed. It appears that the trial Court interpreted the plea in the former sense and, therefore, framed no issue as to whether the pronote in suit was for consideration but only as to whether it had been discharged. The said plaint allegation not having been denied specifically or by necessary implication, the defendants shall be taken to have admitted it. In his statement under Order 10, Rule 2, C. P. Code, also Jawahar Singh did not specifically deny the execution or consideration of the pronote but stated that the amount had been fully repaid. Two witnesses were produced on behalf of the plaintiff who supported the plaint allegation with regard to the consideration of the pronote, Parmanand and Amar Singh, but neither of them was cross-examined on the point. The suit was pending in the trial Court for about nine years but the defendants never moved the Court for adding any issue with regard to the consideration of the pronote. It is manifest therefore that even if it be supposed that denial of consideration could be spelt out of the defence pleas, the omission to frame an issue with regard to consideration was due to the deliberate conduct of the defendants themselves and so they will be deemed to have waived it.
9. It was next argued by the learned counsel for the appellants that the debt under the pronote had been discharged. In support of this contention he referred to the receipt Ex. P-6 dated 11-1-1996 B. executed by Mussadi Ram in favour of Jawahar Singh and Harsukh Das. This receipt, however, related specifically to a pronote of the year 1994 B, while the pronote in suit was executed on 18 Bhado 1995 B. It could not possibly be suggested that the year 1994 had been entered in the receipt by a mistake for the receipt was executed in duplicate, one in Urdu by Mussadi Ram and the other in Hindi by Jawahar Singh, and in both of them the pronote in respect of; which the receipt was executed was described as relating to the year 1994. It is further noteworthy that Jawahar Singh admitted, vide his statement Ex. P-2 dated 26-6-2000 B. in execution proceedings, that he did not take back the pronote in respect of which the receipt was executed because there were several pronotes.
10. The decree in execution of which the pronote in suit was purchased by the present plaintiff was passed on 4-3-1998 B. in favour of Jawahar Singh against Mussadi Ram for Rs. 3,645/- odd in a suit for partnership accounts. In the written statement filed by Mussadi Ram in that case a set off was claimed, but that was not in respect of the amount under the pronote in suit. It was strenuously argued by the learned counsel for the defendants-appellants that the accounts suit having been filed about eight months after the execution of the aforesaid receipt dated 11-1-1996 B, the omission on the part of Mussadi Ram to claim a set-off in respect of the pronote clearly showed that it had been already paid off. It is however noteworthy, as admitted by the learned counsel for the appellants, that the pronote was in fact filed by Mussadi Ram in that suit although it was subsequently taken back by him. It is also noteworthy that the pronote did not relate to any outstandings under the partnership for admittedly the partnership started towards the end of 1995 B. while the pronote had been executed in the sixth month of that year. It may therefore be that Mussadi Ram first filed the pronote in the accounts suit in order to claim a set-off in respect of it, but subsequently took it back under the correct or wrongful notion that he could not claim a set-off in respect of the amount due under the pronote in the accounts suit because he held two different characters in the two transactions. In these circumstances, the omission on the part of Mussadi Ram to claim a set-off in the aforesaid accounts suit cannot be taken as lending support to the defence contention that the aforesaid receipt Ex. P-6 related to the pronote in suit.
11. Reference was also made by the learned counsel for the defendants-appellants to an application made on their behalf in the trial Court on 14-7-1950 to summon the pronote for 1994 from Mussadi Ram. The application was infructuous because soon after Mussadi Ram died. It is noteworthy however that it was only after about eight years of the institution of the suit that this application was filed. The appellants are not therefore entitled to any benefit of this belated application.
12. The learned counsel for the appellants referred to a statement of Mussadi Ram in the execution file in order to show that at the time that the receipt Ex. P-6 was executed there was no pronote present. It was sought to be shown thereby that a mistake had been committed in mentioning the year of the pronote in the receipt. No copy of this statement was however filed in the present suit, and the statement does not appear to have been referred to on behalf of the appellants at any stage before the trial Court. The appellants are, therefore, not entitled (to say?) that the statement in question be referred to in the course of this appeal. Even if it be supposed that no pronote was present at the time that the receipt in question was executed, the possibility of a mistake with regard to the year of the pronote is ruled out by the aforesaid circumstances of Jawahar Singh as well as Mussadi Ram having mentioned the same year in their respective writings, and of Jawahar Singh having executed several pro-notes in favour of Mussadi Ram.
13. Lastly, stress was laid by the learned counsel for the appellants on the fact that the pronote in suit though for a sum of Rs. 3,040/-was purchased by the plaintiff-respondent for the trifling sum of Rs. 52/-, and that this figure of Rs. 52/- tallied with the amount mentioned in the receipt Ex. P-6 as still due. It is however noteworthy that although it was about ten years ago that the plaintiff purchased the pronote he has not only not been able to realise anything under it but has been faced with a prolonged litigation due to the recalcitrance of its executants. It is not inconceivable that the plaintiff was aware that in purchasing the pronote he was only purchasing litigation. The report of the officer who conducted the sale in execution proceedings shows that there were many bidders, and the sale lasted several days, but the highest bid was that of Rs. 52/- offered by the plaintiff. That this figure tallies with that mentioned in the receipt Ex. P-6 can, therefore, be interpreted as merely a chance coincidence. In the absence of any satisfactory evidence of discharge, therefore, the mere circumstance of the plaintiff having purchased the pronote for Rs. 52/- cannot be taken as substantiating that plea. I agree with the trial Court in holding that the pronote in suit has not been discharged to any extent.
14. It was next contended by the learned counsel for the defendants-appellants that the present suit was barred by Order 2, Rule 2, C. P. Code, inasmuch as the plaintiff-respondent's predecessor-in-interest Mussadi Ram omitted to claim a set-off in respect of the pro-note in question in Jawahar Singh's accounts suit, and he cited two rulings in support of this contention: -- 'Radha Kishoree v. Ram Coomar', 12 W. R. 79; and -- Nathu Mal v. Ladli Prasad', AIR 1935 Lah 321. Sub-rule (1) of the said rule however provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. The cause of action in this rule means the cause of action for which the suit was brought -- 'Radha Kishen v. Ikramuddin', AIR 1941 All 217. It has already been seen that the pronote in suit had nothing to do with the partnership in respect of which the accounts suit was filed by Jawahar Singh against Mussadi Ram. That being so, it is clear that the cause of action for that suit was quite different from that for the present suit. It follows, therefore, that the present suit is not barred by Order 2, Rule 2, C. P. Code. The rulings cited have no application because they relate to cases wherein the cause of action in the two suits was one and the same.
15. Another ground taken by the learned counsel for the defendants-appellants was that the present suit was barred by res judicata. This is also based on the plea that Mussadi Ram ought to have made his claim under the pronote in suit a ground of defence by way of set-off in the accounts suit. The use of the word 'may' in Order 8, Rule 6, C. P. Code, however, clearly shows that it is optional with the defendant to claim a set-off and he is not bound to do so. That being so, he is not precluded from subsequently filing a suit in respect of the amount which he might have claimed by way of a set-off in a previous suit. -- 'Amritsar National Banking Co. Ltd. v. Fazal Ilahi', AIR 1919 Lah 220, and -- 'Venugopala v. Thirugnanvalli', AIR 1941 Mad 847. Of course, if a defendant does plead a set-off he is bound, in view of the provisions of Order 2, Rule 2, C. P. Code, to do so in respect of his entire claim. -- 'Kathersa Rowther v. Abdul Rahim', AIR 1942 Mad 580. It has however been already seen that the present suit is not barred by Order 2, Rule 2, C. P. Code, due to the omission of the plaintiff-respondent's predecessor Mussadi Ram to claim a set-off in respect of the pronote in the accounts suit of Jawahar Singh against him.
The present suit is therefore not barred by res judicata.
16. The appeal fails and it is hereby dismissed with costs, and the judgment and decreeof the learned Subordinate Judge are affirmed.