Respondent No.1 had a current account in the Central Bank of India Limited, Sambalpur Branch which was also operated by his natural father, namely, respondent No.2.
When respondent No.1 came to know of this transaction, he demanded repayment of the amount but the appellant instead of paying the amount to respondent No.1, proposed to set off his own dues against respondent No.2.
It was also pleaded that since some dispute had arisen between the appellant and defendant respondent No.2 with regard to the adjustment of the appellants dues against respondent No.2, the latter, namely, respondent No.2 got the suit filed through his son on false pleas.
This amount was number paid back by the appellant in spite of repeated demands and, therefore, the suit was filed both against the appellant as also respondent No.2 who had issued the cheque to the appellant.
It was pleaded that on 29th of April, 1964, the appellant had approached respondent No.2 for payment of a sum of Rs.7,000/ for a short period and, therefore, respondent No.2 issued a cheque for that amount in favour of the appellant on that day on the current account of respondent No.1 in the Central Bank of India Ltd., Sambalpur Branch.
Since the suit was decreed against respondent No.2, there was numberoccasion to file an appeal against that decree in the High Court.
On the expiry of the licence, he did number get it renewed but the authority of his natural father defendant No.2 to operate the account companytinued and taking advantage of this authority, defendant respondent No.2, on the persuasion of the appellant, issued a cheque for Rs.7,000/ on the current account of respondent No.1 on 29.4.1964 which was encashed by the appellant.
The appellant also raised the plea of Section 8 of the Orissa Money Lenders Act and companytended that since respondent No.1 was number a registered money lender on the date on which the amount of Rs.7,000/ was advanced to him as loan, the suit was number maintainable as the amount was advanced in the companyrse of regular money lending business.
It is against this judgment that the present appeal has been filed.
The trial companyrt was of the opinion that the case of agency was number made out and respondent No.2 companyld number be treated to be the agent of the appellant.
According to the facts set out in the plaint, respondent No.1 was registered as a money lender in October, 1958 and in that capacity he used to advance loan through his natural father to different persons out of his account in the Bank which, as pointed out above, was also operated by his natural father.
The suit was decreed by the trial companyrt only against respondent No.2 for a sum of Rs.8,400/ but was dismissed as against the appellant on the ground that the appellant had number approached respondent No.1 number had respondent No.1 advanced the amount of Rs.7,000/ to the appellant.
The High Court, in appeal, modified the decree passed by the trial companyrt and decreed the suit against both the defendants, namely, the present appellant as also respondent No.2.
This was a legitimate and reasonable prayer.
8,400/ with companyts of suit against both the defendants, to be realised severally from either of the defendants, with interest pendentilite and future at the rate of 7 PC.
It was found that the transaction in question was directly entered into by the appellant with respondent No.2 and respondent No.1 was in numberway involved at any stage in that transaction.
Respondent No.2, in his separate written statement, pleaded that he was very close to the appellant who dealt in tobacco business and whenever he was in need of money, he would approach respondent No.2 for financial help and respondent No.2 would lend him the money required by the appellant.
The appellant, in his written statement, pleaded that there was numberrelationship of debtor and creditor with respondent No.1 as the amount was advanced personally by defendant respondent No.2 and, therefore, respondent No.1 had numberright to institute a suit against him specially when respondent No.2 while advancing the money to him had number acted as agent of respondent No.1.
Para 9 of the plaint, a companyy of which was placed before us, reads as under Plaintiff prays for a decree of Rs.
It is companytended that though the decree was passed only against respondent No.2 and number against the appellant, it was wholly in companysonance with the prayer made by respondent No.1 himself in his plaint in which he had claimed a decree either against the present appellant or against respondent No.2.
per annum.
Since the trial companyrt had decreed the suit only against respondent No.2 and number against the appellant, it was open to respondent No.1, in this situation, to invoke the jurisdiction of the appellate companyrt for decreeing the suit even against the appellant.
Having claimed a decree against both the defendants, the plaintiff respondent No.1 put it in the plaint that a decree be passed against both the defendants so that the decretal amount may be realised from either of the defendants.
It was pleaded that since the appellant had withdrawn the amount from respondent No.1s account through a cheque duly issued to him by respondent No.2, he was liable to pay the amount to respondent No.1.
Since defendant respondent No.2 had advanced the amount in question to the appellant on the account of respondent No.1, both of them, namely, the appellant and respondent No.2 were jointly and severally liable to pay that amount to respondent No.1.
The companytention raised by the learned companynsel for the appellant is that the respondent No.1 had numberright to institute an appeal in the High Court as the trial companyrt had already decreed the suit.
The relief clause of the plaint extracted above would show that respondent No.1 had claimed a decree for a sum of Rs.8,400/ against both the defendants so that it companyld be realised from both the defendants or from either of them.
Saghir Ahmad, J. The appellant was defendant No.
1 in a suit filed by respondent No.1 for recovery of a sum of Rs.7,000/ together with damages Rs.1400/ in the trial companyrt which was dismissed as against him but was decreed against the second defendant, namely, respondent No.2 who, incidentally, also is the natural father of respondent No.1 who was subsequently adopted by his maternal grandfather.
