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Madras High Court
Asundi Basavon vs Bareddi Goviadappa And Anr. on 11 February, 1910
Equivalent citations: (1910) 20 MLJ 369


JUDGMENT

1. The plaintiff sued as really entitled on a promissory note executed by the 2nd defendant in the name of the first. He also asked for relief against the 1st defendant for not having collected the money and paid it over. The Munsif made a decree against the 2nd defendant only for the suit amount. The Judge reversed the decree and dismissed the suit on appeal by him. The plaintiff preferred no appeal or memorandum of objections, nor does it appear that he asked the Judge to make a decree in his favour against the 1st defendant on the ground that he admitted having received the money. The plaintiff prefers this second appeal and claims a decree against the 1st defendant. The ruling in Kulai Kada Pillai v Viswanatha Pillai (1904) I.L.R. 28 M. 229 is admittedly against the plaintiffs’ contention that the Judge should have passed such a decree under the old Code. Pup Janu Bibee v. Abdul Khadar Bhuyan (1904) I.L.R. 31 C. 643. Iswardhart Singh V. Bibee Sahebzadi (1908) I.L.R. 35 C. 538. Subramanian Chetty v. Veerabadran Chetty (1908) 18 M.L.J. 452 and Kuppusami V. Vijiyanayanar (1908) 18 M.I.J. 586 were referred to. The first case was distinguished in Kulai Kada Pillai v. Viswanadha Pillai (1904) I.L.R. 28 M. 229. The second Calcutta case merely follows the first. The two Law Journal cases are distinguishable as not dealing with the present question The first of them simply deals with the question as to the competency of the Court to grant a lower relief not claimed by way of appeal when the higher relief granted to him by the original Court is refused on appeal. The second Law Journal case can be said only to express a possible view. No case has been cited in which it was held that the Judge was wrong in not passing a decree not asked for at all in any manner. We must, therefore, hold, following Kulai Kada Pillai v. Viswnatha Pillai (1904) I.L.R. 28 M. 229 that the suit was rightly dismissed.

2. We dismiss the second appeal with costs.


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