D.N. Roy, J. - (1.) This is a civil revision by two persons who were Defendants Nos. 5 and 6 in the court below. It is directed against an order dated 20-2-1954, passed on an application of some of the other Defendants u/O. IX, R. 13 of the CPC, by which a decree passed on 13-11-1952, had been set aside and the case was restored to file on its original number for rehearing subject to payment of a sum of Rs. 1000 as costs to the Plaintiff and Rs. 400 as costs to Defendant Nos. 5 and 6. The ground urged on behalf of the applicants is that the decree in question so far as it related to Defendants 5 and 6 in respect of the liability cast upon them was decree upon contest and it was divisible from the rest of the decree that was passed against the other Defendants and Consequently it was neither just nor essential to set aside that part of the decree which concerned Defendants 5 and 6. The view of the lower court has been that there was dispute between the two sets of the Defendants inter se, and the question of liability of one set could not but have a bearing on that of the other set and that under the circumstances the whole of the decree should be set aside and not merely that part of it which was against the applicants to the application u/O. IX, R. 13. It may be mentioned here that in the proceedings taken on the application u/O. IX, R. 13, Defendants 5 and 6 had preferred an objection that the decree so far as it related to them should not be set aside, but they remained absent on the day when the application was heard and the order which is the subject of revision was passed.
(2.) The suit was instituted by the Provincial Cooperative Industrial Federation Limited, Lucknow, against eight persons arrayed on the side of the Defendants. The reliefs were claimed against Defendants Nos. 1 to 6 alone it was alleged in the plaint that the Plaintiff purchased 628 bales of yarn from Defendant No. 1 on various dates and he paid for them a sum of Rs. 3,87,783/12/6 by means of certain cheques for which three stamped receipts were granted by Defendant No. 1, two receipts bearing date 27-9-1948 and the third receipt bearing date 19-10-1948; that during the relevant period Defendant No. 5 was acting as the financier of Defendant No. 1; that the aforesaid cheques were endorsed by Defendant No. 1 in favour of Defendant No. 5 who had then the custody of the said bales of yarn sold to the Plaintiff and Defendant No. 1 asked Defendant No. 5 to deliver the said bales to the Plaintiff; that the Defendant No. 5 agreed and accepted the cheques and promised to give delivery to the Plaintiff when transport was arranged, that Defendant No. 5 obtained payment of the said cheques; that defendant No. 5 delivered only 309 bales of yarn as stated in the plaint; that the Plaintiff was not given delivery of the remaining 319 bales in spite of all efforts and arrangements for transport; that when Defendants Nos. 5 and 6 (Defendant No. 6 having been a proprietor of Defendant No. 5) were pressed to despatch the balance of the bales to their destination they gave a letter on 21-2-1949, to the Plaintiff admitting that they would despatch the said bales at the earliest possible opportunity which were lying with them in Plaintiff's account; that thereafter Defendants 5 and 6 by a letter dated 23-2-1949, wanted a letter of authority from the Plaintiff to sign the delivery receipt of the bales from Defendant No. 1 and also to sign forwarding notes and despatch advices on behalf of the Plaintiff, that the Plaintiff did this on 24-2-1949; that thereafter in pursuance of the authority mentioned above, Defendants 5 and 6 took sixteen bales of yarn which were lying in the Plaintiff's godown in Agra for despatch to Jhansi but they failed to do so; that Defendants 2 to 4 are partners of Defendant No. 1 and that thus Defendants 1 to 6 are liable in the sum of Rs. 2,43,577/15/6 and they, or at any rate Defendants 5 and 6, are further liable in the sum of Rs. 10,447/2/7.
(3.) Defendants 1 to 3 resisted the claim, inter alia, on the ground that Defendant No. 5 was liable and responsible for the delivery to the Plaintiff of the bales sold by Defendant No. 1 and that they have been unnecessarily dragged into this litigation. Defendants 5 and 6 admitted that they were the financiers of Defendants 1 to 4 under a finance agreement dated 6-7-1948; that under that agreement Defendants Nos. 1 to 4 could take advances and loans to the extent of Rs. 25,50,000/- on the security of a floating charge on their entire movables and business assets provided the advances in excess of Rs. 5,50,000/- were further secured by the pledge of the bales of yarn actually put by Defendant No. 1 into their possession as pledgees; that accordingly dealing continued between Defendants 1 to 4 on the one hand and Defendants 5 to 6 on the other and in the course of the dealings Defendants 1 to 4 from time to time used to take advances and also used to take payments towards their account; that they also off and on took delivery of the bales of yarn pledged in the said finance agreement; that no bales of yarn in respect of which payment had been made by Defendant 1 to 4 in accordance with the terms of the said finance agreement remained undelivered with Defendants 5 and 6; Defendants 5 and 6 were therefore not liable. As regards the sixteen bales of yarn mentioned above Defendants 5 and 6 contended that on account of the unsatisfactory work of the despatching agents the Plaintiff's representative approached these Defendants; that out of the sixteen bales of yarn which were of course received by the employees of Defendants 5 and 6, ten bales were despatched to Lucknow under receipt No. O 47836 and the remaining six bales could not be despatched as certain other bales for despatch were not available and there was no specific direction regarding these six bales. They further contended that these Defendants had always been willing to give delivery of these six bales and subject to what has been stated above the Plaintiff was not entitled to any relief.;