BHARGAVA, J. - (1.) THIS is a second appeal by one of the defendants against the judgment and decree of the learned District Judge, Pali reversing the judgment and decree of the learned Civil Judge, Sojat in a suit for recovery of money.
(2.) THE suit was filed by Chunnilal and his two sons Hansraj and Sohanlal against Narainlal and Bhooramal for recovery of Rs. 2835/ -. Plaintiffs and defendant No. 1, i. e. , Narainlal are close relations, Hansraj one of the plaintiffs being married to the daughter of Narainlal. Plaintiffs' case was that on 18th March, 1945, Bhoora Mal acting as agent of Narainlal borrowed Rs. 2000/- from them and executed a Khata in their Bahi for the same. It was further alleged that after the execution of the Khata Bhooramal defendant No. 2 in his capacity as Am-Mukhtiar of Narainlal on three different occasions acknowledged the above debt by adding interest to the principal sum in the Khata. Since the defendants failed to pay the amount, plaintiffs claimed a decree against. Narainlal in the first instance failing which a decree against Bhooramal defendant No. 2. The suit was instituted on 22nd October 1952 as being within limitation from the date of acknowledgments. The suit was contested by both the defendants. Narainlal completely denied that Bhooramal had any authority to borrow money on his behalf. Similarly, he denied Bhooramal's authority to acknowledge the debt on his behalf. Bar of limitation was also pleaded. It was stated that Bhooramal had been appointed his Mukhtiar Am only for the purpose of looking after the court work and he had no authority to borrow money or to acknowledge debt on his behalf. Bhooramal defendant No. 2 admitted the execution of Khata as well as the borrowing of Rs. 2000/ -. He also admitted the three entries regarding addition of interest in the khata of the plaintiffs with the exception of the last item appearing in figures. He stated that he had express authority on behalf of Narainlal to take loan of Rs. 2000/-from the plaintiffs. It was stated that Narainlal had written a letter authorising him to borrow Rs. 2000/- from the plaintiffs and on that basis he obtained the aforesaid amount. As regards the entries made in the khata of the plaintiffs for addition of interest, his case was that Narainlal himself was present at the time, entries were made, but he did not make the entries himself because some criminal litigation was going on between him and the plaintiffs. Further his case was that Narainlal had ratified the contract subsequently and in support of that he produced two letters Exs. B2 and B3 dated 3rd May, 1952 and 1st May, 1952 respectively. The trial court after framing issues and recording evidence of the parties gave decree to the plaintiffs against Narainlal holding that Bhooramal had authority to take this loan and further to make acknowledgments. Narainlal preferred an appeal against the said decree. The learned District Judge did not record a clear finding as to whether Bhooramal had on behalf of Narainlal express authority to borrow Rs. 2000/- from the plaintiffs. He, however, came to the finding that Bhoora Mal had no authority to acknowledge the aforesaid debt, and that being so the suit was clearly barred by limitation as against Narainlal. He also came to the conclusion that Bhooramal did not pay the amount which he had taken from the plaintiffs, to Narainlal. On these findings, the learned Judge allowed Narainlal's appeal and dismissed the plaintiffs' case against him. But he passed a decree against Bhooramal on the ground that he had received the amount from the plaintiffs and acknowledged the debt from time to time. Now Bhooralal has come to this Court in second appeal. Plaintiffs have not chosen to file any appeal as regards the dismissal of the suit against Narainlal. It is contended on behalf of the appellant that the plaintiffs' suit cannot be decreed against the appellant in view of the provisions of section 230 of the Indian Contract Act which lays down that : "in the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. " It is contended that in the plaint it was clearly stated by the plaintiffs that Bhoora Mal had borrowed Rs. 2000/- as Mukhtiar-Am of Narainlal. It is pointed out that Khata Ex. 1 pertaining to this transaction is also in the name of Narainlal. Signatures under the Khata by Bhooramal are also in his capacity as Mukhtiar-Am of Narainlal. Bhooramal did not take any personal liability to pay the amount under the khata. Not only this but in their evidence both Chunnilal and his son Hansraj plaintiffs admitted that Bhooramal had brought a letter of authority from Narainlal asking them to advance Rs. 2000/- to him. Both of them also stated that the letter which Bhooramal had brought was in the hand of Narainlal. It is also pointed out that the acknowledgments were also signed by Bhooramal as Mukhtiar-Am. On the basis of the allegations in the plaint and the subsequent admissions of the plaintiffs, it is urged that it was a case where Bhooramal had entered into this contract on behalf of a disclosed principal and as such no personal liability for the repayment of the money could be fastened upon him. It is contended that it was not the case of the plaintiffs that money was obtained by any fraud or mis-representation from the plaintiffs. Learned counsel for the plaintiff-respondents admits that the plaintiffs' case throughout was that Bhooramal had specific authority to borrow Rs. 2000/- on behalf of Narainlal but in view of the fact that the first appellate court has found though not very clearly that Bhooramal had no authority to borrow money on behalf of Narainlal, he is entitled to a decree against Bhooramal in view of the provisions of sec. 235| of the Indian Contract Act which runs as follows : - "a person untruly representing himself to be the authorized agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing. " It is pointed out that the first appellate court has clearly come to this finding that Narainlal did not ratify Bhooramal's act and letters Exs. B-2 and B-3 did not bear his signatures, and were not genuine. In the alternative learned counsel for the plaintiffs-respondents claimed that in case this appeal was allowed, a decree might be passed in his favour against Narainlal even though he has not preferred an appeal against the decree of the first appellate court. Sec. 230 of the Indian Contract Act lays down in express terms that an agent cannot be personally bound on the contracts entered into by him on behalf of his principal unless there is a contract to the contrary. The present case does not come under the three clauses where a contract to the contrary can be presumed. Nor is there any express contract to the contrary contained in Ex. 1. Bhooramal has not taken any personal liability under the contract. The contents of the document Ex. 1 and the allegations in the plaint clearly show that the contract was entered into by Bhooramal on behalf of Narainlal and not in his personal capacity. This is further strengthened by the admission of the plaintiffs where both Chunnilal and Hansraj admitted that Bhooramal had brought a letter from Narainlal authorising him to borrow Rs. 2000/- from them. In view of clear provisions of the above section, plaintiffs cannot claim a decree against Bhooramal. Whether sec. 235 of the Indian Contract Act can be invoked in the present case is the next question. Sec. 235 applies where a person untruly represents himself to the authorised agent and thereby induces a third person to deal with him as such agent. On the plaintiffs' own showing in this case there was no untrue representation by Bhooramal, nor is it a case where the plaintiffs were induced by that untrue representation to deal with him as such agent. On the other hand they believed the representation made by Bhooramal that he had specific authority to borrow money from the plaintiffs on behalf of Narainlal. The plaintiffs throughout these proceedings took the position that Bhooramal had authority from Narainlal to borrow Rs. 2000/- from them. It was not their case that the money was obtained by Bhooramal from them by making any misrepresentation or practising fraud upon them. No attempt was made to amend the pleadings and even before this Court the stand taken by the learned counsel for the plaintiffs is that Bhooramal in fact had authority from Narainlal to take a loan of Rs. 20,000/- from them. In such circumstances the provisions of sec. 235 cannot be brought into play and the result would now be that plaintiffs would not be entitled to a decree even against Bhooramal. Though the result is very unfortunate but the plaintiffs themselves are to be blamed for it. As regards the submission of the learned counsel for the plaintiffs that a decree may be passed against Narainlal by virtue of the powers given to the appellate court under O. 41, R. 33 of the Code of Civil Procedure, it may be pointed out that in the present circumstances of the case, where the first appellate court has clearly found that Bhooramal had no authority from Narainlal to make acknowledgements and the suit was barred by limitation, no decree can be passed against Narainlal also. It was the duty of the plaintiffs to have filed an appeal against the dismissal of their suit against Narainlal. It is not necessary for this Court in this appeal to go into the question whether the suit is within limitation against Narainlal or not in the absence of any appeal by the plaintiffs. There is a clear finding of fact that Bhooramal had no authority to make acknowledgments on behalf of Narainlal. In such circumstances, the provisions of O. 41, R. 33 of the Code cannot be invoked. The result therefore, is that this appeal is allowed, judgment, and decree of the first appellate court as against the appellant is set aside and the plaintiffs' suit shall stand dismissed against Bhooramal also. In the circumstances of the case parties shall hear their own costs of this appeal. .;