G.K Mitter, J.:— This is an appeal from an order directing the defendants in the suit to furnish security to the extent of Rs. 6500/- for the satisfaction of the plaintiff's claim by depositing the said sum with the defendant's attorney to be held by him free from any lien and subject to further orders of this court, in default whereof the plaintiff was to be entitled to a decree for the amount claimed in the suit.

2. The suit is for price of goods sold and delivered, the plaintiff being one Ajit Kumar Sarkar who describes himself in the plaint as the Managing Agent of a Colliery known as ‘Beldanga Khas Colliery’ of which the proprietors were some persons by the name of Tewarles. According to the plaint the supplies were made and the coals were delivered to the defendant No. 1 at rates controlled by the Central Government, inter alia on the terms that the bills would be payable within 60 days from the date of presentation and the plaintiff would be entitled to charge interest at 12 per cent. per annum, if the bills were not so paid. The particulars of the plaintiff's claim are given in paragraph 5 as based on four separate bills for Rs. 3,023-12, Rs. 410-3-9, Rs. 1,757-1-6 and Rs. 803-12-6. There was no privity of contract between the Colliery or the plaintiff on the one hand and the defendant No. 2, a Company registered under the Indian Companies Act which came into existence after the dates of the contracts on the other. The only cause of action alleged against the second defendant is that under an agreement inter se the defendants, the defendant No. 2 has taken over all the assets and liabilities of the defendant No. 1 impliedly warranting that it would be the liability of defendant No. 2 to the plaintiff.

3. On an application being made under Chapter XIII-A for final judgment for the amount of the claim an affidavit-in-opposition was affirmed by one Amarendra Nath Mukherjee, a partner of the first defendant and a Managing Director of the second defendant. Various defences to the plaintiff's claim have been taken in this affidavit but I need mention only two of them. The first and foremost is that the plaintiff has no right to sue and has no cause of action against either of the defendants. According to the deponent the plaintiff Ajit Kumar Sarkar was held out as the Managing Agent of the Tewaris' Beldanga Khas Colliery and S.C Tewari and others were held out as the Proprietors of the said Colliery and the defendant firm, Mitra Mukherjee & Co. dealt with them on that basis. The deponent goes on to state that orders were placed on the said Colliery for supplies of Steam Goal on inter alia the following terms and conditions:—

(a) That the Steam Coal ordered to be supplied were to be consigned by the said Colliery by Railway to the consignees named by the defendant Mitra Mukherjee & Co.,

(b) That the prices of Steam Coal so supplied would become due and payable upon such consignments being effected.

4. The deponent refers to the bills for the supplies of coal received by it, copies whereof are annexed to the affidavit of Amarendra Nath Mukherjee. These four bills go to show that defendant firm Mitra Mukherjee & Co. was a debtor to the Tewaris' Beldanga Khas Colliery for the amounts mentioned in the bills. All these bills were sent by the plaintiff Ajit Kumar Sarkar for Tewaris' Beldanga Khas Colliery and he is described in the bills as the Managing Agent of the said Colliery.

5. The second defence is that the defendant No. 1 sold and delivered to Messrs. A. Sircar and Sons Ltd. of which the plaintiff was the Managing Agent, diverse quantities of coal of the aggregate value of Rs. 22793.83 nP. Out of this Messrs. A Sircar & Sons Ltd. made payments from time to time totalling Rs. 16,084.68 nP. and with regard to the balance of Rs. 6,709.20 nP. due to the firm an agreement was arrived at on the 9th of August, 1958 between Tewaris' Beldanga Khas Colliery, Messrs. A Sircar & Sons Ltd. and the defendant firm that the claims under the four bills which are the subject matter of this suit would be adjusted against the claims of defendant No. 1 against A. Sircar & Sons Ltd. The only document in support of this agreement is a letter of demand written by the defendants' solicitor to Messrs. A Sarkar & Sons Ltd. on the 30th May, 1958 to which no reply seems to have been given.

6. However, that may be, it is not possible to take into consideration the tripartite agreement alleged in the affidavit-in-opposition only on the basis of the uncorroborated testimony of the affidavit of Amarendra Nath Mukherjee and the letter of demand sent by the solicitor. In the affidavit in reply of the plaintiff it is admitted that the defendant No. 1 placed orders with the Colliery of which he was the Managing Agent. The only letter which shows demand for payment is one dated the 2nd of October, 1956 signed by the plaintiff A.K Sarkar written on the letter head of Tewari's Beldanga Khas Colliery asking for payment of three of the bills mentioned in the plaint. As this letter forms part of the annexures to the affidavit-in-reply the defendant had no chance of explaining the same or of referring to any reply which may have been given thereto. Even this letter does not show that the defendant firm was indebted to the plaintiff.

7. In the plaint as well as in the affidavit in support of the summons the plaintiff relies on two agreements described as Managing Agency agreements—one dated the 29th July, 1954 and the other dated the 9th May, 1947 between the plaintiff and the proprietors of Beldanga Khas Colliery under which the plaintiff claims to have obtained the right to enter upon and work the colliery, make out bills in the names of the Colliery etc. and to be responsible only for payment of certain profits at agreed rates to the proprietors of the Colliery. It is nowhere alleged that the defendants entered into an agreement with the colliery with the knowledge of the Managing Agency agreement or that the defendants knew full well that the plaintiff was the contracting party for the supplies of coal. Whether the plaintiff will ultimately succeed at the hearing of the suit on the strength of the Managing Agency Agreements or on the ground that the plaintiff had an agency coupled with interest it is not possible to predict at this stage. Suffice it to say that the admitted documents do not support the plaintiff's case that the contract was between him on the one hand and the defendant firm on the other. It cannot, therefore, be said that the defendants' dispute of the right of the plaintiff to file the suit is not a bona fide one or that the defence in this regard is sham. In my view there is a triable issue between the plaintiff and the defendant No. 1 with regard to the plaintiff's right to sue. As the learned Judge who made the order did not deliver any judgment it is not possible to say what were the materials which influenced him to take the course he did, but it is enough to say that on the materials disclosed there was a triable issue and the defendant No. 1 was entitled to unconditional leave to defend the suit.

8. So far as the defendant No. 1 is concerned the plaintiff dees not seem to have any cause of action at all as against it.

9. Mr. Banerjee, learned counsel for the plaintiff, raised a preliminary objection that as the defendants have preferred an appeal only from the order directing the furnishing of security and not from the decree which was drawn up later the appeal ought not to be allowed as it will leave the decree untouched. In my opinion this objection is not sound. The decree in this case does not stand by itself but rests on the order for furnishing security and was expressly conditional on the defendants' failure to furnish security. If we find that the order for furnishing security should not have been made, and allow an appeal therefrom, the decree which is based on the order should automatically disappear and there should be no occasion for filing an appeal from the decree which will only go to swell up the costs. In the case of G. Sundaram Chettiar v. P.A. Valli Ammal, (1) I.L.R 58 Madras, 116 on a suit filed under the provisions of Or. 37 of C.P Code based on a promissory note the Master of the Madras High Court being of the opinion that the defence was not bona fide gave leave to defend on condition that the defendant should, within a week, pay the full amount claimed in the plaint into Court. Stone, J. upheld the Master's order granting conditional leave to defend but varied the condition altering it to one of security far the full amount claimed in the suit to be given within fourteen days from the date of the order.

10. The security was not given and the decree was drawn up. No appeal was preferred from the decree and the only appeal filed by the defendant was against Stone, J.'s order imposing the condition. It was urged before the division bench of the Madras High Court that where a decree had been passed and no appeal had been presented against it the court of appeal had no proper seisin of the matter and could not order stay of execution. As against this it was argued that ii the appeal presented was allowed and it was found that Stone J.'s order was wrong then the decree which was passed in consequence of it was of no force. The learned Judges of the Madras High Court after referring to the judgment of this court in Talebali v. Abdul Aziz (2) (1929) I.L.R 57 Cal 1013 held that the appellant's contention should be given effect to. As against this Mr. Banerjee drew our attention to the case of Haji Mohamuddin & Co. v. The Eastern Japan Trading Co.*, (3) I.L.R 50 Cal. 215. In this case a suit was brought for the balance due in respect of certain drafts. The plaintiff presented an application for attachment before judgment and the defendants were called upon to show cause why they should not furnish security for the claim and costs of the plaintiffs or why, in default, their stock-in-trade at 55-11 Canning Street should not be attached until the final determination of the suit or until further order of the court. Buckland, J. ordered the defendant firm to give security at once to the satisfaction of the Registrar of this court to the extent of the plaintiff firm's claim and costs in the suit in default whereof a Writ of attachment was to issue out of and under the seal of this court commanding the sheriff of Calcutta to attach until the final determination of this suit or until further order of this court the stock-in-trade of the defendant firm lying at No. 55-11 Canning Street, Calcutta. An appeal being preferred against the said order it was contended by counsel for the plaintiffs that no appeal lay therefrom. Considering the provisions of Order 38 and Order 43 of the Code of Civil Procedure Sanderson, C.J, said that in his judgment taking the said provisions as a guide it might reasonably be held that the order in so far as it directed the attachment of the property, was a judgment and was appealable. It was to this observation that Mr. Banerjee referred in support of his contention that as the order appealed from is one for furnishing security no appeal lay from it and that even if we are disposed to hold that on the facts of the case that the defendants have disclosed a good and bona fide defence we could not entertain any appeal from the order direct-ting to furnish security. The proposition seems to be an astounding one. The result of the order is that if security is not furnished a decree against the defendants would be drawn up and as a matter of fact a decree has been drawn up and the suit finally disposed of. It is absurd to suggest that such an order is not appealable or that there is any reason to hold that the appeal from the order directing security to be furnished is not maintainable. The effect of non-compliance with the order, as I have already pointed out, is to deprive the defendants of a valuable right, namely, to defend the suit and clearly in such a case it can not be said that the order directing security, in default whereof a decree was to be drawn up against the defendants is not appealable. This point in my opinion has no merits.

11. The appeal is allowed the decree is set aside and the order for attachment is vacated. The costs of the appeal will abide by the result of this suit. Written statement to be filed within 9th of July, 1962, discovery within a week thereafter, inspection forthwith and the suit will appear in the appropriate prospective list two months hence.

Sinha, J.:— I agree.

S.N.G