The plaintiff's claim on the original consideration cannot be restricted, even if the instrument turns out to be a forgery.

1. The defendant is the C. M. appellant. On a promissory note alleged to have been executed by him the suit (O. S. No. 129 of 1966) was filed against him. He denied execution of the note and that plea was upheld and the suit was dismissed by the trial court. An appeal was preferred in the District Court against that decision (A. S. No. 451 of 1968). During the pendency of the appeal the appellant filed an application I. A. 1556 of 1968 praying for amendment of the plaint so as to allow him to continue the suit on the original consideration. That application was allowed by the court on 22 11969. Thereupon, the counsel on both sides requested for a remand of the case and accordingly, the case was remanded and it is against that order of remand that the C. M. Appeal is filed.

2. I hardly see any reason to interfere with the order. In the first place, the order of remand was made by the court below on a joint request made by the counsel on both sides. Para.7 of the judgment of the learned appellate judge would bear out this fact. Learned Judge observes:

"Learned counsel appearing for both parties, also requested for a remand in the light of this order. The learned counsel appearing for the respondent submitted that he has to file an additional written statement and that the plaintiff should not be allowed to adduce fresh evidence on the execution of Ext. P1 and thus reopen the case in that regard and that he should be directed to confine to the alleged original consideration pleaded by him"

The remand was accordingly made restricting the plaintiff in the following terms:

"The plaintiff will not be entitled to adduce any fresh evidence on the question of execution of Ext. P1".

In view of the above circumstances, I fail to see any good faith in the present appeal. Learned counsel argues that a cause of action based on the original consideration will be available to the plaintiff in a case of this nature under two circumstances only and they are:

(1) The plaint is based on a promissory note not admissible in evidence; and

(2) The claim on the promissory note is barred by limitation. I do not think the plaintiff's claim on the original consideration can be restricted like that.

3. Even if the instrument turns out to be a forgery, the executee will have the right to fall back upon the original cause of action.

"if the instrument given is invalid for want of stamp, or if it turns out to be a forgery, or if the debtor knew of the insolvency of one or more of the parties to the bill at the time of transfer, or if it is void owing to a material alteration, the creditor does not lose his right of action on the original debt by the mere fact of his having taken the instrument as absolute payment of the debt If the instrument is dishonoured, payment of the original debt may be enforced as if no security has been taken."

(Bhashyam & Adiga,11th Edition p. 572 & 573).

The position is also covered by other authorities. In Murugappa v. Nachiappa (AIR. 1934 Mad. 503) for instance, Stone, J held:

"Where a cause of action for money lent is once complete in itself and the debtor afterwards gives a promissory note to the creditor for payment of the money at a future time, the creditor, if the promissory note is not paid at maturity, may always, as a rule, sue for the original consideration, provided that he has not endorsed or lost or parted with the promissory note under such circumstances as to make the debtor liable upon it to some third person."

A Division Bench of the Allahabad High Court held in Gopinath v. Srimati Chemsli (ILR.1938 Allahabad 741) that in a case where the promissory note is found not genuine the executee can sue on the original cause of action. The following are the facts of that case:

"Two firms had dealings with each other extending over a large number of years; there were transactions on each side creating independent obligations on the other; accounts were drawn up between the parties at the end of every year; some times the b