Wanchoo, C.J.—This is an appeal by Chhogalal and two others against the judgment and decree of the Senior Civil Judge, Udaipur, by which he dismissed the suit brought by the plaintiffs-appellant against Nenchand, now dead, and two others.

2. The case of the plaintiff was briefly this. The defendants were the owners of a joint Hindu family firm Shivlal Nenchand, which had a branch in Charbhuja Road. The plaintiffs were the owners of another joint Hindu family firm known as Chhogalal Sohanlal of which Chhogalal was the Karta. There were dealings between the two firms and in that connection the defendants gave an account signed by them on Sawan Sudi 10 Smt. 2005. In that account the defendants showed that a sum of Rs. 9,900/-was due from them to the plaintiffs. This account bore the signature of Kanhaiyalal, defendant No. 2 and the plaintiffs filed the suit on the basis of this account and claimed interest at 6% per annum, thus claiming in all Rs. 11,397/—/- -

3. The suit was resisted by the defendants and a number of pleas were taken on which seven issues were framed. In the present appeal however only two issues have been urged before us on behalf of the parties and we shall therefore confine ourselves to these two issues only viz.

(1) Whether the account was a mere acknowledgment on the basis of which no suit could lie.

(2) Whether any mortgage-deed extinguishing the Khata for Rs. 9900/-. was executed by defendant No. 2 and in consequence the suit was not maintainable.

4. The trial court held on the first point that the account in this case was a mere acknowledgment on the basis of which no suit could lie. It therefore dismissed the suit. On the second point it held that there was no mortgage and no novation of contract extinguishing the debt acknowledged by Kanhaiyalal for Rs. 9900/-.

5. The contention on behalf of the plaintiffs in this appeal is that the court below was wrong in not considering whether the account on the basis of which the suit was filed was an account-stated. It is urged that on a true construction of Ex. P. 1, which document is the basis of the suit, the court should have come to the conclusion that it was an account stated and could form the basis of the suit. We must say that we cannot blame the court very much in this connection for it does not seem to have been urged before it that Ex. P. 1 amounted to an account stated. This point appears to have been raised for the first time in the ground of appeal and is being pressed before us. We shall therefore first consider whether Ex. P. 1 is an account stated as urged on behalf of the appellant. If it is an account stated, the suit would lie on its basis.

6. We do not think it necessary to set down Ex. P. 1 in detail here. It is enough to say that there entries both on the credit and debit sides in Ex. P. 1. There are five entries on the credit side totalling Rs. 10,283/10/6. There are nine entries on the debit side totalling Rs. 383/10/6. Then there is a balance which is in these words." ^^ckdh ns.kk lEor~ 2005 lko.k lqnh 10** Finally comes the signature of Kanhaiyalal, who writes above it."

Jh lksoyky us.kpUn dks tqgkj cpkolh Hkwy pwd ys.k ns.kA

7. It is not necessary for us in this case to explain what an "account stated" is. The matter was considered by this Court in Seth Monaklalji vs. Salgiya Rajmal (1) and reliance was placed on the decisions of the Privy Council in Siquerira vs. Noronha (2) and Bishunchand vs. Girdharlal (3). The account Ex. P. 1 is this case in clearly in the form of what an "account stated" should be. It is however urged on behalf of the defendants that before Ex. P. 1 can be treated to be an account stated we have to see whether there were mutual promises, the one side agreeing to accept the amount of the balance of the debt as true and to pay it, the other side agreeing that the entire debt was at a certain figure and then agreeing that it had been discharged to such and such an extent, so that there would be complete satisfaction on pay

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