Bapna, J.:— This is an appeal by the plaintiff in a money suit against one of the defendants.

2. The appellant, Kanraj, filed a suit on the 24th of July, 1948, against the respondent, Vijai Singh, Jagirdar of Ramseen, and one Khub Chand on the allegations that Khub Chand had secured a decree on the 4th of April, 1947, against Mahabbat Singh, father of Vijai Singh, for recovery of Rs. 11,359/7/- (the correct figure is Rs. 11,365/7/-), from the Court of Wards, Jodhpur, and Khub Chand thereafter made an assignment of that decree in favour of the appellant on the 25th of July, 1947. It was alleged that the defendant, Vijai Singh, being the heir and legal representative of Mohabbat Singh, and being in possession of the property left by Mohabbat Singh, was liable to pay the amount of the decree, but had refused to do so, and as the Thikana of the defendant was no longer under the Court of Wards, the suit had to be filed by the plaintiff. It was prayed (1) that a decree for recovery of Rs. 11,364/7/- be passed in favour of the plaintiff against Vijai Singh, and (2) that, if defendant No. 2, Khub Chand, had recovered any amount from Vijai Singh towards the decree of the Court of Wards, a decree for such amount be passed against Khub Chand. Interest was claimed from the date of the suit till realization.

3. Vijai Singh by his written statement dated the 24th September, 1948, denied any knowledge of the decree having been passed against his father by the Court of Wards, adding that the order of the Court of Wards, dated the 4th of April, 1947, relied upon by the plaintiff, did not amount to a decree. It was pleaded that the said order of the Court of Wards could not be made the basis of the suit against the defendant, and that Khub Chand had, by means of some fraud, obtained the order of the Court of Wards, which was not binding on him.

4. Khub Chand filed a written statement on the 7th of February, 1949 alleging that the assignment had been executed on a promise of payment of Rs. 10,000/-, which sum was never paid by the plaintiff to Khub Chand, and that, therefore, the agreement of assignment was without consideration and void. It was also alleged that on receipt of the summons of the present suit, the defendant realized the deception caused upon him by the plaintiff, and he made a settlement with the Jagirdar in respect of the debt evidenced by the order of the Court of Wards, and, therefore, the plaintiff was not entitled to any relief.

Only three issues were framed, viz.,

(1) Whether the agreement of assignment without consideration, and, therefore, invalid?

(2) Whether the suit was main-tainable on the basis of the order of the Court of Wards?

(3) Whether the defendant No. 2 had received satisfaction from the defendant No. 1 after the assignment, and if so, what was its effect?

The trial court, after evidence, held that the debt against Vijai Singh was an actionable claim, and its transfer was complete by execution of the deed of assignment, and that therefore any objection as to the invalidity of the transfer for want of consideration could not be agitated under the provisions of section 130 of the Transfer of Property Act. On the second issue it was held that the order of the Superintendent, Court of Wards, dated the 4th of April, 1947, was an acknowledgment of the debt in question, which could not be challarged by the holder of the estate even after the release of the estate from the management of the Court of Wards under sections 35 and 47 of the Marwar Court of Wards Act, and that, therefore, the said acknowledgment furnished a valid cauce of action. On the third issue it was held that no notice of assignment had been prove to have been served on Vijai Singh, and, therefore, the settlement made by Vijai Singh with Khub Chand was valid. As a result, the Court passed a decree for Rs. 10,000/- which was the amount of consideration for the transfer of the actionable claim, against Khub Chand, and the suit was dismissed against Vijai Singh.

5. The plaintiff has come in appeal, and it is urged that he is entitled to a decree for recovery of Rs. 11,365/7/-, the entire sum, from Vijai Singh. Khub Chand has not filed any appeal, nor was he made party in the present appeal preferred by Kanraj, plaintiff.

6. The plaintiff has challenged the finding on issue No. 3, while the respondent preferred arguments in support of the decree by challenging the findings on issues Nos. 1 and 2, besides other objections, which will be considered hereafter.

7. It was argued on behalf of the appellant that a notice, Ex. P. 3, written on a post-card w?s sent by registered post by Khub Chand addressed to Vijai Singh on the 9th of December, 1947, intimating that Khub Chand had transferred the debt to the plaintiff, Kanraj. The lower court observed in respect of this document that it had not come from proper custody, and had not been proved. It is admitted by the plaintiff that the sender of this notice was Khub Chand and in the ordinary course it should have been returned to him by the Post Office on refusal to take delivery by the addressee. It is explained by the plaintiff in his evidence that his son, Vijai Raj, was the lawyer for Khub Chand, and the sender's address was noted as C/o Vakil Vijai Raj, and when the notice after refusal happened to be delivered to Vijai Raj, the latter passed it on to the plaintiff. While there is no doubt that Vijai Raj acted very improperly in giving to his father a document which he had received for his client, who is a defendant in this case, but that does not affect the merits of the case. The sole point is whether any notice was given to the debtor, Vijai Singh, as required by sections 130 and 131 of the Transfer of Property Act. Sub-section (1) of section 130 of the Act lays down the mode of transfer of an actionable claim, and its effect, viz., that the transfer shall be complete and effectual upon the execution of the instrument of transfer, and that thereupon all the rights and remedies of the transferor shall vest in the transferee. There is, however, a proviso to that sub-section, which lays down that notwithstanding the sights created in the transferee, as mentioned in sub-section (1), every dealing with the debt or actionable claim by the debtor except where he is a party to transfer or has received express notice, as provided later on, shall be valid as against such transfer of the debt. The provision for notice, referred to, is found in section 131 of the Transfer of Property Act, which lays down that every notice of transfer of an actionable claim shall be in writing signed by the transferor or his agent duly authorised in this behalf or, in case the transferor refuses to sign, by the transferee or his agent and shall state the name and address of the transferee. The notice, Ex. P. 3, purports to be given by Khub Chand to Vijai Singh intimating the transfer of the debt, and, therefore, fulfils the formalities required by section 131 of the Transfer of Property Act. The only point that remains to be determined is whether this notice was received by Vijai Singh or should be deemed to have been received by him. It was urged that the endorsement signifying refusal of the addressee to receive the same should lead to a presumption that it was tendered but refused. Reliance is placed upon A.I.R 1926 Lahore 520, (1) in which I.L.R 15 Calcutta 681(2) 17 C.W.N 1073 (3) and 23 C.W.N 319 (4) were followed. A contrary view has been taken in A.I.R 1939 Patna 540. (5). In this Patna case a notice was sent by registered post but was received back with an endorsement that the addressee had refused to accept it. But the peon who made the endorsement of refusal was not examined nor his handwriting had been proved. Their Lordships held that “a letter if posted and not received back through the Dead Letter Office may be presumed to have been received by the addressee, but this presumption does not apply where the letter purports to have been returned as being refused by the addressee.” Reliance was placed on a Calcutta case, 19 C.W.N 489 (6). The same view was taken in Nagpur in 48 I.C 901 (7).

8. The Calcutta view does not appear to be uniform, and the two divergent views have already been referred. Under section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business in their relation to the facts of the particular case.

9. The postal service in India is, on the whole, fairly satisfactory, and if an endorsement purports to be by an officer of the Post Office that the addressee had refused to receive the document, it can be presumed chat the document was tendered and refused. Such presumption can be rebutted, and in proper cases only by a denial by the addressee. Reference may be made to A.I.R 1948 Calcutta 63. (8). In the present case the defendant, Vijai Singh, had no opportunity to deny, since the notice was not referred to in the pleadings, nor produced before the issues, but was put to Khub Chand during his cross-examination. The document itself bears three endorsements, dated 19th, 20th and 26th December, 1947, that the addressee was not found. The endorsement of the 26th is signed by one Sohan Lal. The endorsement of refusal is dated 22nd December, and an illegible signature appears, which may or may not be in respect of the said endorsement. There is nothing to show that the endorsement of ‘refusal’ was made by an officer of the Post Office. The document was not produced from proper custody in proper time, and no reliance can be placed on the said endorsement.

10. It was next argued that the suit was filed on the 24th 01 July, 1948, and the summons was served both on Vijai Singh and Khub Chand on the 19th of August, 1948. The written statement of Vijai Singh, which was filed on 24th September, does not mention any settlement with Khub Chand, and Khub Chand, who takes a plea of the settlement in his written statement on the 7th of February, 1949 clearly says that he made a settlement after the receipt of the summons in the present suit. It was urged that the receipt of the copy of the plaint should be deemed to be a notice of the transfer of the actionable claim, and any settlement made by the debtor thereafter should be held to be ineffective against the assignee of the debt. Reliance was placed on Ragho v. Narayan . The said decision was based on the language of section 131 of the old Act. The old section did not validate payment by the debtor if he was a party to or “otherwise became aware of” or had received express notice of the transfer. The language of the present section 130 is, however, different, and the protection is taken away only if the debtor is a party to the transfer or has received express notice thereof as provided in section 131.

11. It was urged on behalf of the respondent that the plaint, even if it be assumed to be a notice of transfer was not on given by the transferor, and although nothing is mentioned in the plaint, the fact of the existence of Ex. P. 3 showed that the transferor had till that date never refused to sign. The notice by the plaint was, therefore, not valid. Reliance was placed upon 1915 Lower Burma 10 , in which it has been held that in the case of a notice by the transferee, mention must be made in the notice itself that the transferor refused to sign the notice. A contrary view has been taken in I.L.R 33 Madras 123 , and their Lordships observed at page 130 that the Act does not require that the circumstance of the refusal by the transferor to sign the notice should, be mentioned in the transferee's notice. In my opinion, according to the plain language of section 131, the notice of transfer is to be given by the transferor and if given by the transferee, it should be alleged or shown that the transferor had refused to sign the notice, although that circumstance need not be mentioned in the notice.

12. Assuming that the service of summons and delivery of a copy of the plaint was a notice of assignment of the debt by the transferee, it could also be understood therefrom that the plain-til was willing to relinquish his claims against Vijai Singh to the extent of realisations made by Khub Chand. This is evident from the prayer that in respect of such realisations by Khub Chand the plaintiff was willing to have a decree against Khub Chand rather than against Vijai Singh.

13. Mr. Hastimal, who appeared for the appellant, made an application that he may be allowed to produce additional evidence of the fact that a notice had been given by a registered post card by the transferee on the 9th of December, 1948, the same date on which Ex. P. 3 was written by Khub Chand, but that such notice was also refused by the debtor, and returned to the sender. The alleged notice, after its return, remained all along with the plaintiff, and no reason is given why proper allegations were not mentioned in the plaint, and why the document was not produced in the lower court. The powers of the Apellate Court to take additional evidence are given in Order XLI, rule 27, of the Code of Civil Procedure, and unless good cause is shown for its non-production in the lower Court, it cannot be allowed to be produced in the Appellate Court. The prayer cannot be accepted.

14. It was next argued that the Transfer of Property Act was only brought into force in Marwar in 1949, and, therefore, the provisions of section 130 and 131 of the Transfer of Property Act were not applicable to the present suit filed on 24th July, 1948, and that as soon as the debt had been assigned, the transferee had alone the right to recover the same, and any payment made by the debtor to the transferor after the filing of the suit should be held to be of no consequence as against the transferee. The above contention was also raised in support of an argument that in places where the Transfer of Property Act was not in force, the English law was administered as a matter of justice, equity and good conscience, and that under the English law a notice by transferee only was sufficient, and that the notice by service of a copy of the plaint should be sufficient. Reliance was placed on 1907 (P.R) 9. .

15. It may be observed that in England the common law rule is no longer in force, and the matter is now regulated by Statute, and if the assistance of the Statutes have to be taken, it would be far more consonant with justice, equity and good conscience to rely upon the Indian Statute rather than the English Statute, and the matter, from the point of view of the Indian Statute, has already been discussed.

16. As to the first aspect of the case; if the provisions of the Transfer of Property Act were to be left out of account, the general principles of the law of contract would apply, and the promisor cannot be held liable to a third party not privy to the contract. In order that the promisor may become liable to a third party, it would require the consent of the promisor, the promisee and the third party so that the original contract would be discharged, and a new contract between the third party and the promisor would come into existence, vide section 62 of the Contract Act. In the present case, the debtor was no party to the contract between Khub Chand and the plaintiff, and on general principles of contract, the plaintiff is not entitled to succeed against Vijai Singh.

17. It was next argued by Mr. Hastimal that the finding of the learned District Judge that Vijai Singh had paid up the amount to Khub Chand is not supported by reliable evidence, and if the alleged settlement may only be a promise to pay in future, the plaintiff-assignee does not lose his remedy against the debtor.

18. It is true that the debtor did not, at any stage, take the plea that he had paid the entire amount of Rs. 11,365/7/- to Khub Chand. Khub Chand had taken the plea that he settled the account with the debtor without disclosing whether he had received the amount in cash or made any remission or entered into a contract for payment in future. The entire evidence on this point consists of the statement of Khub Chand alone. He was not cross-examined by the plaintiff and made to disclose what settlement he had made. The evidence of Khub Chand is in sufficient to prove that the debtor paid up the debt in cash but some sort of settlement can be held proved by the statement of Khub Chand. The point can be of importance if the plaintiff were willing to step in the shoes of Khub Chand with respect to the new contract of the discharge of the debt that may have been made the plaintiff was unwilling to adopt that contract as he did not know where it may land him and the lower court, therefore, did what was most beneficial to the plaintiff and gave him decree for the full amount of consideration mentioned in the deed of assignment. The plaintiff's grounds of appeal, thus have no force.

19. The respondent argued certain other points also in support of the decree. It was argued that the assignment was without consideration, and, therefore, invalid, and that the lower court had made a mistake in the interpretation of section 130 of the Transfer of Property Act, in holding that the plea could not be raised after the execution of the deed of assignment. The relevant portion of section 130 of the Act reads as under.

“The transfer of an actionable claim ‘whether with or without consideration’ shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorized agent, and shall be complete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not:”

The words “whether with or without consideration” only mean that the assignment can be by means of sale, mortgage, or by means of a mere gift, and the words “shall be effected only by the execution of an instrument in writing” mean that parole assignment is not valid. The words “shall be complete and effectual upon the execution of such instrument” mean that it takes effect from the execution of the instrument irrespective of the notice to the debtor so far as the transferor and the transferee are concerned. It does not mean that the assignment once having been executed cannot be challenged on grounds, including want of consideration, on which any other contract can be impeached. The view of the lower court that after the assignment had once been executed, it cannot become invalid for want of consideration is incorrect. The plea, however, does not succeed on merits. On behalf of Khub Chand three witnesses, viz., Khub Chand, D.W 2, Achla, D.W 3, and Hansa, D.W 1, have given evidence on this point. Khub Chand states that he asked Vijai Raj Vakil, son of the plaintiff, to put his decree in execution, whereupon he suggested that it would be more convenient to do so if it were transferred in favour of his father, and thereupon he executed Ex. P. 1, the deed of assignment, and it was agreed that the money would be paid to him after verification of the assignment in court. He states that he was never taken to the court thereafter and when he demanded the money he was put off from time to time and he was ultimately told that he would be paid on realisation from the debtor. Achla, D.W 3, is an attesting witness. He states that no consideration was paid at the time of the execution of the assignment and Kanraj agreed to pay it 4 or 5 days later. Hansa, D.W 1, refers to an occasion when Khub Chand demanded money from Kanraj at the shop of Tara Chand and Kanraj replied that he would pay when the amount was realised in the decree. The story does not carry credence, since, as would be discussed more fully, the order of the Court of Wards was not a decree, and could not be put into execution, and an assignment of that order did not require any verification by court. If the assignment was only for purpose of facilitating execution of the alleged decree, there was no occasion for payment of the consideration of Rs. 10,000/-, mentioned in the deed of assignment. Khub Chand, in cross-examination, admits having written out and posted Ex. P. 3, the notice of transfer of the debt for service on Vijai Singh, and it is dated 9th December, 1947. Khub Chand could not be expected to have given this notice five months after the deed of assignment, if he had not received consideration by that time, and was being put off from time to time. Tara Chand has come in rebuttal as P.W 3, and he denies any talk as aforesaid at his shop. Kanraj plaintiff asserts having made the payment of consideration. In my opinion, the transferor has failed to prove that he did not receive consideration. The plea was raised by Khub Chand, and he has not filed any appeal.

20. It was next argued that the order of the Court of Wards dated 4th April, 1947, is only an acknowledgment and cannot be made the basis of the suit. The argument is that the liability of the defendant arose on the debt alleged to have been advanced to the father of the defendant, and order of the Court of Wards was at best only an acknowledgment, which did not give rise to any fresh cause of action and the suit, as framed, was not main-tinaable. On behalf of the respondent reliance was placed on A.I.R 1938 Nagpur 180, A.I.R 1932 Oudh 49 and A.I.R 1920 Patna 161.

21. The point seems to be of considerable importance, and my learned brother informs me that he has referred another case coming up before him to a Division Bench. It is, therefore, being dealt with at some detail.

22. The relevant order of the Court of Wards, dated 4th of April, 1947, Ex. P. 2, is as under:—

“This is a claim of the plaintiff for Rs. 11,359/7/- against Thikana Ramseen on the basis of the Khata executed by the Thakur of Ramseen. The legal adviser had denied the claim on the ground that there is no entry of the transaction in the Thikana Bahies. The plaintiff has produced 7 witnesses 10 prove the execution of the Khata. The Thikana Vakil has produced no evidence. As the claim of the plaintiff has been proved, it is ordered that the said sum plus Rs. 6/- may be registered in the list of the unsecured creditors of the Thikana according to rank.”

These proceedings were taken by the Superintendent, Court of Wards in accordance with certain provisions of the Marwar Court of Wards Act, 1923. Under section 32 of the said Act, a notice is required to be published calling upon all persons having claims against the ward to notify the same within six months and on presentation of claims, an officer is to be appointed to conduct an inquiry and to decide which of the claims notified are to be allowed and which are to be disallowed in whole or in part and his proposal is required to be confirmed by the Court of Wards. Under section 39, directions are given for the application of the income of the estate of the ward and certain classification is made as to the priority of objects on which the income can be spent. The liquidation of debts comes under class II and ranks third in that class. According to the scheme of the Act, the claims are called in order to arrive at correct record of the indebtedness of the ward, and the decision to allow any promise to pay and indeed the contingency of payment may or may not arise as the disbursements for purposes of class I and certain other purposes of class II rank in priority to the debts. The Act does not prevent any creditor of the ward from filing a suit against the ward, but only provides for a notice being given prior to preferring the claim in court, vide section 49. The order of the Court of wards, as stated above, is no better than an acknowledgment of debt. The lower court has held that an acknowledgment can be made the basis of a suit as the discretion exercised by the Court of Wards in any suit cannot be challenged in a civil court. The learned District Judge has referred to sections 32, 35 and 47 of the Court of Wards Act. Sections 32 and 35 relate to the notice of claimants and the investigation of claim, and section 47 lays down that the exercise of any discretion conferred on the Court of Wards by the Act cannot be questioned in a civil court. What this means in relation to the facts of this case is that while it may not be questioned why the Court of Wards made the acknowledgment yet it does not follow that it created any new rights in the creditor. The acknowledgment would remain there with all its legal effects and disabilities. The learned counsel for the appellant relied upon A.I.R 1922 Bombay 183, 1944 Bom. 19 1932 All. 199 and 1938 Lah. 234 in support of the proposition that an acknowledgment can form the basis of a suit.

23. In A.I.R 1922 Bombay 183, debts were incurred in July and September, 1914, and an account was made up on the 29th June, 1917, on which date the acknowledgment was signed. After referring to 33 Indian Appeals 165, their Lordships held that an acknowledgment was made before the expiry of the period of limitation, there was no reason why such an acknowledgment should not form the basis of a suit. This case was followed in A.I.R 1944 Bombay 19 where the facts giving rise to the liability were mentioned, and an acknowledgment of 17th March, 1936, was relied upon as the basis of suit. It was held that the right of the plaintiff to sue arose solely on that document, and could, therefore, be the basis of suit. Their Lordships, however, observed that they were not dealing with a case of a time-barred debt to which section 25, sub-section (3) of the Contract Act would become applicable. In A.I.R 1932 Allahabad 199, Justice Niamatullah held that an unconditional acknowledgment implied a promise to pay and afforded a new cause of action to the obligee, and in support of his view relied on the observations of their Lordships of the Privy Council in 33 Indian Appeals 165 Sulaiman C.J, however, did not subscribe to this view, and explained that the observations of their Lordships of the Privy Council in Maniram's case (Supra), viz., that an unconditional acknowledgment always implied a promise to pay, was an exposition of the English law. It was pointed out that in Maniram's case (Supra) the only point in dispute was whether certain words amounted to an acknowledgment of liability within the meaning of section 19 of the Limitation Act. The learned Chief justice observed that

“Maniram's case cannot be extended so as to be an authority for the proposition that in India every unconditional acknowledgment implies a promise to pay to such an extent as to override the provisions of the Limitation Act, the Contract Act, the Stamp Act or the Evidence Act.

In order to enforce the law of limitation strictly, the legislature has thought fit to throw on the creditor the burden of proving that the acknowledgment was made within time. Mere acknowledgment is not enough under section 19 unless it is shown that it has been made before the expiration of the prescribed period. It is, therefore, not sufficient for the plaintiff to merely prove the acknowledgment of liability to pay a money debt and throw the burden of showing that the acknowledgment was made beyond time on the debtor.”

The view was brought out with greater force in AIR 1934 Allahabad 79 by a different Bench, where it was clearly held that a mere acknowledgment of an older debt could not be made the basis of the suit. In A.I.R 1935 Allahabad 129, which was again a judgment to which Sulaiman C.J was a party, the learned Chief Justice explained his earlier case, A.I.R 1932 Allahabad 199, and dissented from the view taken by Niamatullah J., and the view taken in A.I.R 1934 Allahabad 76 was approved. It was held that “where there is no fresh consideration proceeding from the promisee, the acknowledgment cannot be treated as an agreement which may give rise to a fresh cause of action”. In A.I.R 1938 Lahore 234, Dalip Singh J. observed,

“I do not think that this Court has ever held that merely because an acknowledgment implies a promise to pay it can form the basis of a suit, apart from proof of consideration.”

Din Mohammad J. held the particular entry to be an express promise to pay within the meaning of section 25(3) of the Contract Act. The third Judge, Coldstream J., although of different opinion, did not like to dissent.

24. On behalf of the respondent, reliance is placed on A.I.R 1938 Nagpur 180, A.I.R 1932 Oudh 49, and A.I.R 1920 Patna 161.(9).

25. In the Nagpur case, Bose J. took into consideration the decision in A.I.R 1922 Bombay 183 and observed that the question was not discussed at length in that case. His Lordship held that the document sued upon was an acknowledgment under section 19 of the Limitation Act, and observed.

“It cannot operate to save limitation unless it has been executed within time; also in such a case, the suit must be founded on the original cause of action. The document itself cannot be used as basis of the suit,”

In the Patna case , Jwala Prasad J. held that

“an acknowledgment of a debt only enures to the benefit of the creditor for the purpose of saving limitation if it is made before the original debt is time-barred, but the basis of the suit is always the original debt. No suit can be maintained on a mere acknowledgment of a debt.”

Several cases in support of the above view are cited in the said authority. In the Oudh case it was held that an acknowledgment of liability only allowed extension of limitation if made before the expiration of the period prescribed. It did not create a new right but only allowed a new period to run from the date of the acknowledgment. Such acknowledgment does not operate as a new contract but only keeps alive the original cause of action. Maniram's case was referred to and explained in this judgment.

26. With great respect I agree with the view, which has been taken in the Nagpur, (Supra) Oudh. and Patna (Supra) cases, mentioned above, and which is also supported by A.I.R 1934 Allahabad 76, and certain observations in A.I.R 1938 Lahore 234. In the present suit, there is no mention of the original cause of action, and the defendant Vijai Singh had clearly pleaded that it could not form the basis of a cause of action. He had also pleaded that he did not admit that consideration had passed in respect of the entries which were submitted before the Court of Wards. It was the duty of the plaintiff to plead all the facts which gave rise to the debt against Mohabbat Singh. In the absence of such allegations, the plaintiff cannot succeed against Vijai Singh, and no decree can be passed against him.

27. One more point was argued on behalf of the respondent. It was con-tended that the plaintiff's suit was in the alternative, and that as he obtained a decree against Khub Chand for the full amount of consideration paid by the plaintiff, his appeal against Vijai Singh was incompetent.

28. On behalf of the appellant it was explained that his suit not against Khub Chand in the alternative, but his main claim was against Vijai Singh on the assignment. He, however, impleaded Khub Chand and claimed such amount only against him as he may have received after the assignment. It is, however, conceded that the plaintiff could not claim a decree against Vijai Singh while retaining the one against Khub Chand. The point is not free from difficulties as to what would be the rights of the plaintiff in such a case as this. It is, however, clear that the plaintiff sought relief against Vijai Singh on the basis of a deed of assignment of a certain debt, and he could obtain a relief against Vijai Singh on proof of the debt. It was not necessary for the plaintiff in the suit to have claimed any relief against Khub Chand. The plaintiff could only claim a relief against Khub Chand for the amount realised by him in case the plaintiff conceded that any dealing with the creditor by the debtor in the meanwhile was acceptable to him. The remedy could, however, be claimed either against the debtor or against the transferor, but not against both, in respect of the same amount. The trial court in giving a decree for Rs. 10,000/- seems to have disregarded the actual settlement, made by the debtor with the transferor, which may not have been of advantage to the plaintiff, but instead gave a decree for a full amount of consideration, which could be done as if on a breach of contract or the assignment having fallen through by the act of the transferor. This relief could be given only as an alternative to the grant of relief against debtor. The plaintiff, while filing the present appeal, has not made Khub Chand a party to the appeal, nor has he specifically mentioned in his grounds of appeal that he was willing to relinquish the decree against Khub Chand, and would press for a consideration of his case against Vijai Singh only. It is obvious that the plaintiff cannot retain the decree against Khub Chand and also press his claim against Vijai Singh. It has been held in I.L.R 13 Rangoon 189 that where the plaintiff claims from the two defendants in the alternative and gets a decree against one, he has no cause of action left, and an appeal against the other is incompetent. The principle on which the Rangoon case (Supra) was decided appears to be applicable in the present case. In my opinion, the plaintiff having obtained a decree against Khub Chand for the amount of consideration paid by him as on a breach of contract of assignment, is incompetent to assert his claim against Vijai Singh under the same contract.

29. At one stage of the case the learned counsel for the appellant prayed that Khub Chand be now made a party respondent, and under the provisions of Order XLI, rule 33, of the Code of Civil Procedure, the decree against him be set aside, and his claim against Vijai Singh may be decreed. This) was perhaps on the supposition that the plaintiff could claim relief against Vijai Singh on the merits. As discussed above, his claim against Vijai Singh cannot succeed, and in the circumstances the plaintiff has got all that he could by a decree against Khub Chand. It is unnecessary to discuss whether Court can great relief under Order XLI, rule 33, in the manner contended by counsel.

As a result, this appeal fails, and is dismissed with costs.