The burden of proof lies on the party who asserts payment of a debt, and the appropriation of payment is determined by the intention of the parties, as expressed or implied from the circumstances.

JUDGMENT :- This second appeal has been directed against the judgment and decree dated 6th September, 1967 of Shri B.D. Sharma, District Judge, Mandi.

2. The plaintiff Dhanwant Singh came to Court with the allegations, that the defendant Parkash Chand Anand had borrowed Rupees 3.000/- from him on 25th of November, 1960 and the entry to that effect was made in the 'Bahi Khata' of the plaintiff. Subseguently the defendant paid Rupees 120/- on 22-3-1961 and accordingly the entry was made in the 'Bahi Khata'. This was a payment of interest that accrued upon the debt. Thereafter, the defendant paid Rupees 2,000/- on 6-11-1962 and the entry to that effect was again made in the 'Bahi Khata'. The plaintiff appropriated Rupees 600/- towards interest and the remaining Rupees 1,400/- were accounted for the payment of principal amount. In this manner, Rupees.1,600/- remained to be paid for the principal. Besides this, the plaintiff claimed Rupees 96/- for interest and Rupee 1/- for notice which he served upon the defendant. In this manner, a decree for Rupees 1,697/- was claimed against the defendant.

3. The defendant resisted the claim on the ground that he had paid Rupees 3,000/- on 21-8-1961 through a bank draft which, under instructions of the plaintiff, was sent to Panna Lal Hira Lal, Commission Agents of the plaintiff. In this manner the entire debt was paid. No interest was stipulated and hence nothing can be found due from the defendant. In respect of Rupees 2.000/- paid by the defendant on 6-11-1962, it was alleged in the written statement that this was a debt borrowed by the plaintiff from the defendant and he would recover that debt under due process of law. The learned trial Judge framed the following issues:-

"(i) Whether the defendant has paid the amount sued for as per bank draft?

(ii) Whether the plaintiff is entitled to the amount sued for with interest. If so, at what rate?

(iii) Relief".

4. The learned trial Judge gave the findings, that the sum of Rupees 3.000/-was really paid in discharge of the debt in suit. He, therefore, dismissed the claim of the plaintiff. The first appellate Judge, however, decreed the suit, holding that the amount of Rupees 3,000/-was paid in relation to a certain partnership business which the parties were undertaking during that period. He found that no amount could be recovered for interest. In this manner, the two sums of Rupees 120/- and Rupees 2,000/- were deducted from the principal. In the result, the decree was passed for Rupees 880/- in favour of the plaintiff.

5. The defendant has felt aggrieved of the decision of the learned District Judge and has come up in this second appeal.

6. The learned counsel for the appellant contended that a question of law was involved in the case. According to him, the burden of proof was wrongly placed upon the defendant and it was for the plaintiff to show under Section 60 of the Indian Contract Act, 1872 as to the manner in which he appropriated the payment of Rupees 3.000/-. Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that either the absence of an issue or any inaccuracy which could be detected in the issue already framed, was fatal to the case, or that there was that mistrial which vitiates proceedings. A suit cannot be dismissed on this narrow ground, and also there is no need for a remit as the evidence which has been led in the case is sufficient to reach the right conclusion.

7. The initial burden of payment was upon the defendant. His case was that he had neither any partnership business with the plaintiff nor any mutual dealings with him. That being the position, according to the defendant, it is not a case of several debts owed by him to the plaintiff. Therefore, no question, in fact, arises for the plaintiff to have appropriated the payment towards any particular debt. In fact, such a plea is not