JUDGMENT

Ba U, J - The plaintiff-appellant sued the respondent and one Po Hla for recovery of Rs. 5,000 alleged to be due as principal and interest on a promissory note. In para, (1) of his plaint the plaintiff-appellant, Chettyar stated:

That, at Mandalay on the 1st Wagaung Lazok 1287 B.E., equivalent to 4th August 1925, the defendants by their promissory note hereto attached in original, jointly and severally promised to pay to the plaintiff the sum of Rupees 2,000 bearing interest at Rs. 2-8-0 per cent per mensem.

2. The defendant-respondent who alone contested the suit admitted this allegation of the plaintiff-appellant, but pleaded that the suit as against him was barred by time and that it was not maintainable partly because the agent through whom the plaintiff-appellant instituted the suit was not empowered to do so and partly because the plaintiff-appellant had failed to register his business name as required by the Burma Registration of Business Names Act, 1920. None of these defences was accepted by the trial Court and the amount claimed was decreed with coats. The matter was taken up on appeal to the District Court at Mandalay and there the defendant-respondent contended that the plaintiff-appellant had no right to sue on the suit promissory note inasmuch as it was executed not in his favour, but in favour of one K.S.A.V. Ramiah Raja.

3. On behalf of the plaintiff-appellant it was submitted that as the defendant-respondent had by his written statement admitted the truth of the allegation made in para, (1) of the plaint, he (the defendant-respondent), was estopped from pleading on appeal that he (the plaintiff, appellant), had no right to sue on the suit promissory note. It was further submitted on his behalf that he carried on money lending business at Mandalay under the name and style of K.S.A.V. firm and that in accordance with the custom prevailing among the agents of money lending Chettyar firms in Burma "Bamiah Baja who was his agent at the time material to the suit put his name jointly with the initials of his (plaintiff-appellant's) firm in promissory notes executed either by him or in his favour and that consequently he had aright to sue on the suit promissory note. Neither of these two submissions found favour with the learned District Judge, who held that the question whether the plaintiff-appellant could sue on the suit promissory note or not was a question of law and that there, fore the defendant-respondent was not debarred from raising it for the first time on appeal. He further held that as the promissory note was on the face of it clearly executed in favour of K.S.A.V., Bamiah Baja, the plaintiff-appellant could not sue on it. In accordance with these findings the learned District Judge set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff-appellant with costs.

4. The same points have now been raised -before me for decision. Before I deal with these points I may point out that both in the list issued by the Local Government of firms registered at Mandalay under the Burma Registration of Business Names Act, 1920, and the registration certificate (Ex. B) K.S.A.V. Ramiah Baja is shown as the partner of the firm of K.S.A.V. Therefore the allegation of the plaintiff-appellant that Ramiah Baja was his agent at the time the suit promissory note was executed is not correct. What appears to be the case is that Ramiah Baja is a partner in the firm of K.S.A.V. and at the time the suit promissory note was executed he was in charge of the firm's business at Mandalay. Further, as pointed out above, the suit promissory note was executed in his favour. From these facts the following two propositions of law arise for decision:

(1) Whether a defendant can plead on appeal that the plaintiff oannot aue on a promissory note after he has admitted the execution of it in the plaintiff's favour by his written statement though the suit promissory note was on the face of it clearly executed in