Judgement

Appeal (No. 30 of 1938) from a decree of the High Court in its Appellate Jurisdiction (January 27, 1937), which reversed a decree of the same Court in its Original Jurisdiction (April 9, 1936).

The suit was instituted in the High Court by the appellant, Mahant Singh, against the four trustees of a pagoda and the respondent, U Ba Yi, for moneys due for work done in connection with the pagoda. The works were executed under a contract in writing entered into between Mahant Singh and the four trustees. The four trustees signed the contract and U Ba Yi orally guaranteed the performance of it by them.

In the plaint each of the trustees was named as a defendant, and after their names were added the words "All the above "four are trustees of the Kyaikasan Pagoda, Thisigangyun, "and are sued in that capacity." By his prayer the plaintiff asked for relief against each of the defendants individually.

After the institution of the suit, and before it was heard, the four trustees were removed from office and eight new trustees were appointed in their place.

Mahant Singh then applied for and obtained leave to amend his plaint by substituting the eight new trustees for the original four trustees.

At the hearing, before the merits of the case were entered upon, the trial judge suggested that the liability of the original trustees was a personal one and that no liability attached to the new trustees.

Mahant Singh thereupon applied for the replacement of three of the original trustees (the fourth having died). This application was refused and the trial proceeded.

The trial judge held that, if a man contracted with a trustee, he contracted with him as an individual, and that the case against the new trustees was misconceived, as they were not parties to the contract, and dismissed the suit as against them; but he granted a decree against U Ba Yi for the sum claimed less a small amount not covered by his guarantee.

U Ba Yi appealed and Mahant Singh filed cross-objections.

The Appellate Bench agreed with the trial judge in dismissing the suit as against the new trustees, but held that, in withdrawing the suit against the original trustees, Mahant Singh had discharged the principal debtor in such a way as to render the contract unenforceable and void, and that the liability of the surety was in consequence discharged, and dismissed the suit as against U Ba Yi also.

1939. Feb. 3, 6. D. N. Pritt K.C. and de Silva K.C. for the appellant. The plaintiff did not release the principal debtor; if he did, he did it in such a way that he reserved his rights against the surety. The application to amend the plaint was not an application under Order xxiii, r. 1, of the Code of Civil Procedure. There is nothing in that Order which deals with a case such as this. That shows the application to amend and the amendment were not made under that Order. The plaintiff did not abandon a part of his claim. It is difficult to say he withdrew the suit as against the four trustee defendants. He had a claim against the trustees of the pagoda. He was trying to get money out of the trust fund. If the trustees had to be changed, the names of the defendants had to be changed. Order vi., r. 17, might apply. [Sect. 12 of the Code was referred to.] So long as there is any life in a contract, it does not fall under s. 2 (j) of the Contract Act. The contract did not become void by reason of the amendment of the plaint. It was still enforceable. There is nothing in s. 134 of the Contract Act to say you cannot, when releasing the principal debtor, preserve your right against the surety.

[Reference was made to ss. 56 and 65 of the Contract Act and to Muntgappa Mudaliar v. Minor Munusami Mudali (( 1920) 38 M. L. J. 131.) and Nur Din v. Allah Ditta. (( 1932) I. L. R. 13 Lah.

817.)

If the conclusion is arrived at that what the plaintiff did effected an alteration of his rights by procedural law, then the question would arise as to whether the plaintiffs error could be cured under s