An agent cannot be held personally liable for contracts entered into by him on behalf of his principal, unless there is a contract to the contrary.

P. V. B. RAO, J.

( 1 ) THE appellant is the Collector of Ganjam who was appointed Receiver in Title suit No. 44 of 1948 which was a suit for succession to the Mahantship of haradakhandi Muth. He filed the appeal as representing the Haradakhandi Muth. The first respondent who is the plaintiff is the widow of one Binayak Sahu in whose favour the 2nd respondent who is the plaintiff is the widow of one Bina Baikoli panigrahi, defendant 5 in the case, as agent and power-of-attorney holder of the previous Mahant of Haradakhandi Muth, Sri Ramanarayan Das Goswami executed a promissory note for Rs. 1600/- as agent of the Mahant of the Muth. The third respondent Sri Maithili Priya Das Goswami who is defendant 2 in the case is the successful claimant in Title Suit No. 44 of 1948 to succeed Mahant ramanarayan Das Goswami and the fourth respondent was added as defendant 3 as he was one of the curators appointed by the District Judge with regard to the haradakhandi Muth.

( 2 ) THE plaintiff filed a suit on the said promissory note alleging in her plaint that the amount so borrowed by the manager and power-of-attorney holder of the late mahant of the Muth was spent for the benefit and necessary purpose of the institution under instructions of the late Mahant, that the Mahant Ramanarayan das died on 9-9-47 leaving as his Gurubhai and successor Mahant Sri Maithili Priya das Goswami, defendant 2, that subsequently the Collector of Ganjam was appointed in the first instance as curator and afterwards as Receiver in the Title suit and that as the suit debt was binding on the Muth, a decree be passed against the assets of the said Haradakhandi Muth. Alternatively the plaintiff prayed that In case the debt is held not to be binding on the Muth, a decree might be passed against defendant 5 to pay personally the amount due together with costs. It may be noted that in the plaint there is absolutely no allegation as to why the fifth defendant can be made personally liable. It may also be noted that it is significant that though the allegation is made in the plaint that the promissory note was executed by the fifth defendant as agent and general power-of-attorney- holder of the then Mahant Sri Ramanarayan Das goswami, there is no prayer in the alternative that in case the amount borrowed is held not to be binding on the Muth property, a decree might be passed against the personal assets of the late Mahant in the hands of his successor.

( 3 ) THE Collector of Ganjam filed written statement alleging that the fifth defendant was not authorised under any power-of-attorney to contract debts as he pleased, that he had no authority to contract the suit-debt. He denies the truth, validity and passing of consideration under the suit promissory note. He also alleged that there was no necessity for the Mahant or the fifth defendant as his agent to borrow the suit-loan as there was large balance in hand by the date of the suit-loan and that the loan amount was not spent for any of the purposes binding on the Muth, the fifth defendant Balkoli Panigrahi the power-of-attorney-holder admitted the borrowing of Rs. 1600/- from the plaintiff's late husband in his capacity as manager and power-of-attorney-holder of the late Mahant of Haradakhandi Muth and that the amount was spent for the benefit and necessary purposes of the institution, and that no personal decree against him should be passed.

( 4 ) THE learned Munsif held that the agent had exceeded his authority in incurring the suit-debt, that there was no legal necessity for contracting the loan so as to bind the Muth property, that the loans alleged to have been discharged by the amount borrowed under the suit promissory note were not pressing debts even if they were due and that there was a large cash balance in hand on the date on which the loan was contracted, but passed a decree making the fifth defendant personally liable for the suit promissory note.

( 5 ) ON appeal by the fifth defendant, the learned Subo