KODALI MALLAYA Vs. TANGOPPALA RAMAYYA

JUDGEMENT

(1.) THIS is an appeal from the judgment of Krishnaswami Aiyar J. in C.R.P. No. 742 of 1908 in which the learned Judge confirmed the judgment of the District Munsif of Bezwada who dismissed the plaintiff s suit to recover the amount due to the plaintiff for the balance of purchase money due to him from the defendant for the sale of certain land. The plaintiff received from the defendant on the date of the sale an unstamped document which has been held by both the Munsif and by the learned judge to be a promissory note, and as the document could not consequently be acted on, the learned judge held that the suit was rightly dismissed, It is contended in this appeal that as the transaction of sale itself gave the plaintiff a complete cause of action he is entitled to a decree for the amount, apart from the promissory note. It is no doubt true that the sale entitled the plaintiff to the payment of the balance of purchase money, and the law gave him also a lien on the property for the amount. The promissory note by itself would not, according to the allegation in the plaint, extinguish the lien, as the sale was not in consideration of a covenant to pay the balance of the purchase money, but in consideration of the payment of the money itself. But this suit is not one to enforce the lien on the property, but to enforce the personal obligation of the defendant to pay. In a suit to enforce this obligation the principle laid down in Pothi Reddi v. Velayudasivan (1886) I.L.R. 10 M. 94, Yarlagadda Veera Ragavayya v. Gorantla Ramayya (1905) I.L.R. 29 M. 111, Sheikh Akbar v. Sheikh Khan (1881) I.L.R. 7 C. 256 is applicable. That principle is that where a document which cannot be used in evidence is executed to evidence a complete pre- existing right a suit may be maintained on the original right itself unless it be shewn that it was intended to merge the right in the document, but where at the time that an obligation comes into existence, a document is executed as the evidence and record of that obligation, a suit to enforce it can be only on the document itself. In this case the plaint does not show that the case falls within the former category of cases. Whether the plaintiff may not still be entitled to institute a suit for the enforcement of his lien, it is unnecessary to consider. We agree that this suit was rightly dismissed The appeal is dismissed with costs.