MODI, J. - (1.) THIS civil regular second appeal by the plaintiffs Hazarimal and another has been directed against the judgment and decree of the District Judge, Pali, dated the 4th August, 1960, in a suit for money.
(2.) THE material facts leading up to this appeal are, to a certain extent, common ground between the parties and these may be stated first. Thakur Ram Singh was indebted to one Pukhraj Devichand and in order to pay him off, he borrowed a sum of Rs. 4951/- from the plaintiffs on the 8th April, 1952, and in lieu thereof executed a promissory-note, Ex. 1, in favour of them, stipulating to pay interest thereon at the rate of one per cent per mensem. On the 13th December, 1952, an accounting was done between the parties, and it was found that a sum of Rs. 5430/- was due from the defendant to the plaintiff. This account was settled as follows: - The defendant gave 60 maunds of Til of the value of Rs. 900/- to the plaintiffs, and the latter relinquished a sum of Rs. 100/- and for the balance of Rs. 4430/-, defendant Ram Singh gave over three letters to the plaintiffs: - (1) On Gosain Sewapuri for sum of Rs. 3226/8/- (Ex. 2); (2) On Alikhan Lalkhan for sum of Rs. 662/8/- (Ex. 4) and (3) On Sankalcl and Ja roopji for a sum of Rs. 541/-, (Ex. 3 ). Of these third parties, Alikhan paid Rs. 662/8/- to the plaintiffs, which was the entire sum which he had been called upon to pay by Ram Singh to them while Sankal Chand paid Rs. 400/- out of the sum of Rs. 541/- which he had been called upon to pay to the plaintiffs; but Sewapuri did not honour the letter of Ram Singh and declined to pay anything to the plaintiffs. In this manner, the plaintiffs received a sum of Rs. 1062/8/- only and thus a sum of Rs. 3367/8/-remained to be received by them. So far, the parties are in substantial agreement. But from this point onwards, they hotly disagree. According to the plaintiffs, the defendant Ramsingh had himself undertaken to discharge the liabilities covered by the three letters mentioned above, if and in so far as the third parties concerned on whom the letters had been given failed to pay the amounts which they had been called upon to pay to the plaintiffs and for this position, the plaintiffs rely on what Ramsingh had himself stated on the back of the promissory note Ex. 1 on the 13th December, 1932. The relevant wording is as follows: - :i;k 5430½ ij ekqd fnjk;k lks olwy b. k izksfetjh uksv jk pqdrk lks b. k fpfv~b;ka jh jde ugha ivh rks fteesokjh fbdk. kk jh jslha la- 2009 jk iksg onh 11- n% jkbksm+] jkeflag** Translated in English), this means that a sum of Rs. 5430/- has been arranged to be paid in the manner mentioned above, and, therefore, has been credited in full payment of the promissory note. If, however, the amounts mentioned in the Various letters are not received (by the plaintiffs), then the responsibility for the same would be that of the Thikana. The position taken up by Ramsingh, on the other hand, was that once he had given the aforementioned letters to the persons concerned calling upon them to pay the various amounts mentioned therein to the plaintiffs, his responsibility had entirely ceased and that he was no longer liable to pay any money whatsoever to the plaintiffs because the latter had agreed to realise those amounts from the persons concerned and had given him the necessary credit with respect to the entire amount of the promissory-note. The defendant placed strong reliance in support of his position on the Khata Ex. A. 1, in which the dealings which took place between him and the plaintiffs had all been entered, and the plaintiffs themselves had squared up this Khata on the 13th December, 1952. I cannot help pointing out here that the written statement filed by Ramsingh is most rambling and a highly unsatisfactory piece of pleading and makes extremely confused reading. This would appear from the further stand taken therein that so far as the amount of Rs. 541/- for which a letter had been passed by Ramsingh to Sankalchand Jairoopji was concerned, the responsibility to pay this amount to the plaintiffs was still his (Ramsingh's) in case they did not receive this amount from Sankalchand. And it is further remarkable that Ramsingh would have it believed that it was only with respect to this amount that the endorsement as to the Thikana's responsibility in the event of non-payment was made on the back of the promissory-note Ex. 1. Probably this defendant thought that that was the best way of explaining away the highly significant undertaking which he had himself given on the back of the promissory-note, inasmuch as Sankalchand had paid a sum of Rs. 400/-to the plaintiffs before the suit came to be filed, and his further case was that he had declined to pay the balance of Rs. 141/-to the plaintiffs only because the latter had refused to hand over Ram Singh's letter on Sankalchand to him. It may be mentioned straightaway that after the suit was filed, Sankalchand was prepared to and did deposit the sum of Rs. 141/- which he admitted to be due from him to the Thakur along with his written statement and the trial court, under the circumstances, passed a decree against him for a sum of Rs. 24/8/-as interest with proportionate costs by its judgment dated the 2nd August, 1955. Having regard to the attitude adopted by the defendant Sankalchand, it can be easily seen that defendant Ram Singh thought that it would be quite safe to take up the position which be did with respect to the money payable by Sankalchand on his behalf to the plaintiffs in the event the latter failed to receive it from him. Defendant Ramsingh has laboured hard in his written statement to point out that the plaintiff Hazarimal was an Am-Mukhtar of this defendant and that he had the Thikana books with him in that capacity and that during the course of the discharge of his duties as Am Mukhtar, he had auctioned two grass-/ors, one belonging to his (Ramsingh's) wife and the other to his son, and that a sum of Rs. 3226/8/- was to be realised from defendant Sewapuri vide Ex. 2 on account of these grass Jon and this plaintiff had himself a share in this deal and had all the papers with regard to the said auction and consequently it was his duty to have realised the amount of Rs. 3226/8/- from Sewapuri, and if he failed to do so, the responsibility was his own and he had no right, once he had agreed to recover this amount from Sewapuri, to demand it from him (Ramsing) even if he had not received the same from Sewapuri. It would be convenient to point out here that it is not at all in dispute between the parties that the plaintiff Hazarimal had ceased to be an Aam-Mukhtar of the defendant Ramsingh before the happenings of the 13th December, 1952, took place, or, in other words, before the said defendant had done the accounting on that date or had passed the three letters to Sewapuri, Alikhan and Sankalchand. The only other plea from those taken by Ramsingh, which it is necessary to mention is that according to him, the plaintiffs should have given him a notice of dishonour by Sewapuri of the letter which the former had given to the plaintiffs within a reasonable time of it having been so dishonoured, and that as they had failed to do so, he was, on this ground also, not liable to pay the amount of this letter to the plaintiffs. So far as defendant Sewapuri is concerned, he utterly denied that he had anything to pay to Thakur Ram Singh and the position taken up by him, therefore, was that he was not bound to honour the letter which Ram Single had made on him in favour of the plaintiffs. In the replications filed on the 31st July, 1955, the plaintiff Hazarimal adhered to the position taken up by him in the plaint. At this stage, it may also be pointed out that on the 17th December, 1955, the defendant Ram Singh moved an application for amending paragraph (3) (A) of his written statement so as to read that it was only with respect to the letter given on Sankalchand that he had accepted his ultimate responsibility and that the plaintiffs had got the relevant endorsement worded in such a way that this responsibility would extend to the amounts mentioned in all the letters given by the defendant but which was not acceptable to the defendant and had been mentioned by mistake which the defendant did not know at the time and as he had taken the final responsibility for one of the letters, he had signed the endorsement on the back of the promissory note. This amendment was opposed and disallowed by the trial court. Before proceeding further, it may be mentioned that the plaintiffs claimed their relief in an alternative form, to wit, they claimed, in the first instance, a decree against defendant Ram Singh for a sum of Rs. 3367/8/- plus a sum of Rs. 932/8/- as interest at the stipulated rate of twelve per cent per annum, total amounting to Rs. 4300/- and pending and future interest at the same rate until the realisation of the decretal amount, and alternatively they also claimed a decree for Rs. 3226/8/- against both defendant Ram Singh and defendant Sewapuri together with interest at the stipulated rate of twelve per cent per annum from the date of Ex. 2, that is, the 13th December, 1952, upto realisation, and a like decree against defendant Ram Singh and defendant Sankal Chand for a sum of Rs. 141/-together with interest at the aforementioned rate from the 13th December, 1952, upto the date of realisation. It was in this state of pleadings that the matter came up before the trial court (Senior Civil Judge, Sirohi) on the 2nd August, 1955. The learned Judge was disposed to hold that as there was no contract of any kind between the plaintiffs and defendant Sewapuri, he could not be impleaded, and his name was accordingly struck out from the suit and he was also allowed Rs. 10/- as costs. Obviously, the learned Judge was of the opinion that there was no cause of action against defendant Sewapuri and as the suit would still remain alive even if it was dismissed against him, he seems to have thought it best to order that his name be struck out from the plaint. As respects Sankalchand, as already stated, he had deposited the sum of Rs. 141/- in court along with his written statement and that was the only amount which was due from him apart of course from interest. The learned trial Judge passed a decree for a sum of Rs. 24/8/- as interest together with proportionate costs and decreed the suit against him to that extent. This having been done, the learned Judge framed issues as between the plaintiffs and Ram Singh on the same date, i. e. , the 2nd August, 1955. The trial proceeded accordingly.
(3.) THE learned Judge framed the following issues: - (1) Whether it was the responsibility of the plaintiffs to recover the sum of Rs. 3226/8/- which was due from Sewapuri and was outstanding because the plaintiffs had also a share in the THEka for the Jor along with Sewapuri and all the papers relating thereto were in the possession of the plaintiffs in their capacity as Aam-Mukhtars of the Thikana? (2) Whether the plaintiffs are precluded from realising the sum of Rs. 3226/8/-from the defendant Ram Singh inasmuch as they failed to give notice to him within a reasonable time of Mah Sudi 15, Smt. 2009, it being the due date for payment of the amount? (3) Whether in view of the fact that in the event of the said sum not having been realised from Sewapuri, the responsibility for recovering it being that of the Thikana, Thakur Ramsingh personally was not responsible to pay the same as his Thikana, in the meantime, had been resumed. (4) Whether the plaintiffs were not entitled to recover interest at the rate of one rupee per cent, per mensem on the sum of Rs. 3226/8/- from the date of the accounting? and (5) What relief? THE trial court decided all the issues against the defendant and decreed the plaintiffs' suit for Rs. 4300/- and allowed future interest on the same at the rate of four per cent per annum. Defendant Ramsingh then went in appeal to the learned District Judge, Pali, who by his judgment and decree reversed the decree of the trial court and framing a fresh issue sent the case back to the court for a fresh decision after permitting all the parties con cerned to lead evidence on it. That issue reads as follows: - "is a sum of Rs. 3226/8/- due to Thakur Ramsingh defendant No. 1 from Sewapuri defendant No. 2 and the plaintiffs are, therefore entitled to recover this amount from Sewapuri? The learned District Judge was of the opinion that the learned Senior Civil Judge Sirohi was grossly in error in striking out the name of Sewapuri from the plaint without making any attempt to determine his liability for the payment of the amount mentioned in the Chitti Ex. 2, and that Sewapuri was a necessary party to such a suit, and, therefore, the learned Judge ordered that Sewapuri's name be again added in the array of defendants so that it might be possible for the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The learned Judge also found that the dealings between the plaintiffs and Ramsingh constituted an assignment of an actionable claim within the meaning of S. 130 of the Transfer of Property Act. He further found that "the transfer being complete, all the rights and remedies of Thakur Ramsingh vested in the plaintiffs respondents whose right it was to have pursued their remedy against Sewapuri by suit even without impleading the appellant. " It is this decision which the plaintiffs challenge by the present appeal. Sewapuri has not put in appearance in spite of service. For facility of reference therefore, I shall refer to Ramsingh as the defendant in this case. At the very outset, learned counsel for the defendant raised a preliminary objection that this appeal was incompetent, and in support of this submission, learned counsel placed his reliance on my decision in Punja Vs. Ramlal (1 ). The facts of that case were that the trial court had decided all the issues in the suit in favour of the plaintiff except the one relating to the maintainability of the suit in the form in which it was instituted, and the suit was therefore dismissed. The appellate court agreed with the trial court's finding as regards the non-maintainability of the suit but came to the conclusion that the plaint should have been allowed to be amended and therefore remanded the suit for allowing the amendment and trying it according to law. It was held that an order of remand like that could be passed under the inherent powers of the Court under S. 151 C. P. C. and no appeal was competent against such an order of remand. Learned counsel for the appellants submits that this ruling is entirely distinguishable on facts and that the order of remand in the present case amounts to a decree to the extent to which it disposed of important rights of the parties and that the court below had actually framed a decree-sheet after it had decided the appeal and that the present case is governed by a Bench decision of this Court to which also I was a party and which is reported as Manak Lal Vs. Madan Lal (2) That was a suit for redemption of a certain shop. The defendants denied the plaintiff's right to redeem. The Munsiff dismissed the suit holding that the plaintiff had no right of redemption. He also held that the suit was barred by limitation. The plaintiff appealed and the court of first appeal held that the plaintiff had a right to redeem, and on the question of limitation, it found that as no issue had been framed on that question, the parties had been prejudiced and were not able to lead all the evidence that they could have led. That court, therefore, remanded the suit with a direction that an issue of limitation should be framed and that after such evidence as might be adduced by the parties, the suit should be disposed of afresh according to law. Thereupon the defendant appealed to this Court. A preliminary objection was raised before a learned single Judge of this Court to the effect that the appeal was not maintainable, and as the question was of importance, the matter was referred to a Division Bench. After an elaborate discussion of the case law, it was held that: - "where an appellate court completely disposes of an appeal and frames a decree in accordance with such disposal, and decides some of the matters in controversy in the suit conclusively and then orders a retrial or a remand, the decision amounts to a decree within the meaning of sec. 2 (2) of the Code of Civil Procedure inasmuch as there is a formal expression of an adjudication which so far as regards the court expressing it conclusively determines the rights of the parties with regard to some of the matters in controversy in the suit. " And it was further held that in such a case, a second appeal would lie to this Court. This decision was followed in another Bench decision of this Court reported as Yadavchandra Vs. Board of Secondary Education (3 ). On a careful consideration of this matter, I have definitely come to the conclusion that the principle of these cases fully applies to the case before me. The trial court had decreed the suit against defendant Ramsingh holding that he could not escape his liability under the letter Ex. 2. When the matter came in appeal before the learned District Judge, it was contended by counsel for Ramsingh that the various letters executed by him in favour of the plaintiffs amounted to an assignment of a debt in favour of the plaintiffs and all the rights and remedies of Ramsingh against Sewapuri became vested in them. This contention which, let me pause to point out here, was raised for the first time before the learned Judge in appeal, prevailed with him. He held that the various letters clearly indicated an intention to assign a debt and that Ramsingh's debt amounting to Rs. 5430/- stood "wholly discharged" on account of the acceptance by the plaintiffs of these letters, and further that it was clear that the plaintiffs had accepted this arrangement in full and final settlement of their claim. The learned Judge concluded his discussion by finding that the transfer being thus complete, all the rights and remedies of Thakur Ramsingh vested in the plaintiffs and it was for them to have pursued their remedy against Sewapuri by a suit even without impleading Ramsing. It was in this view that he held that the trial court had fallen into gross error in striking out the name of Sewapuri from the plaint without making any attempt to determine his liability for the payment of the amount mentioned in the Chithi Ex. 2 which the defendant Ramsingh bad made on him in favour of the plaintiffs, and, therefore, Sewapuri was a necessary party to such a suit, and on this reasoning the learned Judge went to the length of impleading Sewapuri as defendant No. 2 in the suit by his judgment under appeal which is dated the 4th August, 1960, although the said defendant had been discharged from the suit by the trial court by its order dated the 2nd August, 1955. Although the learned Judge has not in so many words said it, this judgment necessarily absolves Ramsing from his liability towards the plaintiffs, though a further issue was framed which has already been cited above, to decide whether Sewapuri owed any money to Thakur Ramsingh defendant. A decision like this, in my considered opinion, amounts to a decree so far as the defendant Ramsingh is concerned and a decree has been actually framed by the lower appellate court although it has remanded the suit to try this further issue between the parties. All that being so I have no hesitation in holding that the decision of the learned District Judge finally decides the rights as between the plaintiffs and Ramsingh, which it would be no longer open for the courts below to question and such a decision fully satisfies the requirement of a decree as defined in S. 2 (2) of the Code of Civil Procedure. When an order of remand amounts to a decree, there can be no escape from the conclusion that second appeal would lie from it. In this view of the matter, the preliminary objection fails and is hereby repelled. ;