Suit by endorse of promissory not dismissed as against such executant.

On 17th December, 1947, two persons named Kanthammal and Kuppuswami Chetti executed a promissory note for Rs. 10,000 in favour of one Ispahani. On 13th December, 1950, Ispahani endorsed the note without recourse to one Rajalakshmi. Thereafter, Rajalakshmi instituted C.S. No. 64 of 1951 on the file of this Court to recover the money due on ths promissory note. At this time a sum of Rs. 4,500 lay to the credit of the first defendant in C.S. No. 42 of 1945 on the file of this Court. On 4th March, 1952, Rajalakshmi applied for attachment before judgment of this amount and attachment was ordered on 5th March, 1952. But, by some mis-chance, the money was paid out to Kanthammal. Thereupon, Rajalakshmi applied to the Court that a direction should be issued to Kanthammal to bring back the money. An order was accordingly made by Panchapakesa Ayyar, J., who directed Kanthammal to bring back that money. Against that order an appeal (O.S. A. No. 146 of 1952) was filed. But that appeal was dismissed. On 29th January, 1954, Ramaswami, J., after hearing both the parties, confirmed the ex parte order of attachment that had been made by this Court on 5th March, 1952.

C. S. No. 64 of 1951 was transferred to the City Civil Court where it was numbered as O.S. No. 1694 of 1955. On 1st November, 1955, Mr. Tirumalpad, the Second Assistant Judge of that Court decreed the suit with costs against Kuppuswami Chetti but dismissed it with costs as against Kanthammal. In paragraph 20 of the Judgment, he observed:

“ My finding on Issue 2 is that Exhibit A-1 was transferred in the name of the plaintiff at the instance of the 1st defendant, on the understanding that the plaintiff would realise the money only from the 2nd defendant and that therefore the plaintiff is not entitled to any decree against the 1st defendant on the promissory note Exhibit A-1. The 1st defendant had no objection to a decree being passed against the 2nd defendant.”

Here it may be explained that the case of the 1st defendant at the trial was this. She admitted that she had executed the promissory note but the consideration was advanced only to Kuppuswami Chetti. He was the person really liable to pay the amount. The promissory note was deposited in Court in pursuance of an order made by the Court in C.M.P. No. 6932 of 1949 in O.S. A. No. 57 of 1949. When that appeal was compromised and in pursuance of the terms of the compromise, the promissory note was directed to be handed over to Nagiah or a nominee of his, Nagiah owed money to the 1st defendant. He, therefore, directed Ispahani to endorse the promissory note to the plaintiff who would collect the money from the second defendant and pay it over to the first defendant.

After the suit was dismissed as against her, Kanthammal filed I.A. No. 395 of 1956 on the file of the City Civil Court claiming a sum of Rs. 1,000 as compensation from Rajalakshmi under section 95 of the Civil Procedure Code. The learned Assistant Judge dismissed the application. From that order Kanthammal has preferred the present appeal.

Section 95 (1), Civil Procedure Code, provides inter alia for two classes of cases in which compensation may be ordered to be paid to a defendant where an attachment has been effected at the instance of a plaintiff. One is that the attachment must have been applied for on insufficient grounds. The other is where (a) the suit of the plaintiff fails and (b) it appears to the Court that there was no reasonable or probable ground for instituting the suit. It appears from the order appealed from that the case was argued only on the basis that the suit of the plaintiff had failed and that there was no reasonable or probable ground for instituting that suit. Though it does not appear that there was an abandonment of the case in so far as it could be rested on the ground that the attachment had been applied for on insufficient grounds, that aspect of the matter was not argued before that Court. The learned Assistant Judge took the view