Khaja Mohamad Noor, J.:— This is an application in revision directed against a decree of the District Judge of Gaya, dismissing the plaintiff's appeal against a decree of the Munsif of Aurangabad which in its turn dismissed the plaintiff's suit based upon a promissory note. The note in question is said to have been executed by the defendant no. 1 as the manager of the joint family consisting of himself and his two sons (defendants 2 and 3) in favour of defendant no. 4 alleged to have been a benamidar of the plaintiff. The plaintiff averred that at the time when the loan (the consideration of the pro-note) was advanced he was a minor and, therefore, the note was taken in the name of the defendant no. 4. The defence, inter alia, was a denial of execution of the pro-note, the passing of the consideration and the plaintiff's right to sue.

The trial Court without going into the merits dismissed the suit. It held that under section 78 of the Negotiable Instruments Act the holder (as defined in section 8) was the only person who could give discharge to the drawer and, therefore, no other person was entitled to maintain the suit. It relied upon two decisions of the Madras High Court and a decision of a learned Judge of this Court sitting singly in Ramdas Sahu v. Chhota Lal Mander The last case did not, however, decide the question and I shall refer to it later. Another Single Judge decision of this Court in Sarjoog Singh v. Deosaran Singh taking a contrary view does not seem to have been brought to the notice of the learned Munsif.

On appeal the learned District Judge dismissed the appeal. Sarjoog Singh's case and the decision of the Calcutta High Court in Brojolal Saha Banikya v. Budhnath Pyari Lal & Co., on which it was based, was brought to his notice; but he preferred to follow, the Madras and the Allahabad decisions as being in his opinion more in consonance with the Act. In my opinion, the decision of a Single Judge of this Court, though not binding on us sitting in a Division Bench, being nevertheless the decision of a superior Court, ought to have been followed by the learned District Judge; and in not doing so he has acted with material irregularity in the exercise of his jurisdiction.

Now the question is whether any person other than a holder can maintain a suit on the allegation that the holder was the plaintiff's benamidar. Strictly speaking there is only one decision of this Court on this point, viz., that in the case of Sarjoog Singh. The case of Ramdas Sahu v. Chhota Lal Mander, relied upon by the learned Munsif, did not, as was pointed out by the learned District Judge in this case and by Kulwant Sahay, J. in Sarjoog Singh's case, decide the point. It was conceded in that case that such a suit as the present one was not maintainable. The question of the maintainability of the suit was neither argued nor decided. In that case (as in this) the holder was a defendant and had asked to be made a plaintiff. The lower Court refused this. The learned Judge held that it being conceded that the suit as it stood was not maintainable, the lower Court exercised a correct discretion in not allowing the holder to be made a plaintiff and thereby destroying the valuable right acquired by the defendant by virtue of the law of limitation. Later on I shall have to revert to this decision as I propose to allow the defendant no. 4 of this suit to be made a plaintiff if he so desires.

The trend of the decisions of the Madras and the Allahabad High Courts is in support of the view that no other person than the holder of the promissory note can maintain an action thereon; but in none of the cases the question was directly in issue and decided. The Calcutta High Court has taken a contrary view in the case of Brojo Lal Saha Banikya v. Budhnath Pyarilal & Co. and that case was followed by a learned Judge of this Court in Sarjoog Singh's case. Now it is well-settled that a decision of a particular case is, strictly speaking, confined to the facts of that case and the observations made therein need not necessarily be applied to another case unless the facts of the latter case justify this application. It is easy to conceive cases which though in form are on behalf of the beneficiaries or, in other words, on behalf of persons other than the holders of promissory notes, in reality and in substance they are suits by the holders themselves and in such suits plaintiffs are in a position to give through the holders complete discharge to the drawers. Therefore a suit of such a nature is in effect by the drawer himself and the principle enunciated by the Madras and the Allahabad High Courts cannot strictly be made applicable to it. For instance, in the Allahabad case of Reoti Lal v. Manna Kunwar the holder of the hand-note died without any heir and nobody was before the Court capable of giving a discharge to the drawer. The suit was dismissed. The observations of the learned Judges are no doubt somewhat general, but as far as the facts of that particular case were concerned, the considerations which influenced the decisions in the Calcutta case and in Sarjoog Singh's case in this Court did not apply. In the Full Bench decision of the Madras High Court in Subba Narayana Vathiyar v. Ramaswami Aiyar, though, again, the observations of the learned Judges were general, the real decision was only this much that in a suit by the holder of a promissory note the plea that the plaintiff was the benamidar was not maintainable. Here again one who was under the law competent to give a discharge was the plaintiff;, the defendant was not allowed to plead that somebody else was the beneficiary of the promissory note. In Sadasuk Jankidas v. Siri Kishan Pershadi their Lordships of the Judicial Committee in fact held that it was not open to either party of a Hundi to show either by way of claim or defence that the signatory was in reality acting for an undisclosed principal.

The learned Advocate for the opposite party (Mr. Sarjoo Prasad) has drawn our attention to a decision of the Judicial Commissioner of Nagpur: Vishnu v. Achut, where it was held that a person could not maintain a suit on a pronote on the allegation that the holder was his benamidar. It is not clear from the judgment of this case if the holder was a party to the suit and whether the plaintiff was in a position through the holder to give a discharge to the drawer. In fact none of the these cases is an authority for the proposition, that in a suit in which the holder, though not a plaintiff, is a party and the plaintiff is in a position to give to the drawer, through the holder, a discharge, the plaintiff cannot maintain the suit.

On the other hand in the Calcutta case the promissory note was in the name of one Pyarilal Das and the suit was on behalf of the firm of which Pyari Lal Das was a partner. In fact it was he who had verified the plaint. It was held that the suit was on behalf of the holder and, therefore, the Court decreed the suit. In Sarjoog Singh's case the holder of the hand-note was a defendant in the suit who had appeared in Court and stated that he was a mere benamidar. In fact he was ready to give the defendant (the drawer of the promissory note) a complete discharge. The learned Judge directed the suit to be tried on the merits. As I have said the facts on which decrees were passed in the Calcutta case and on which this Court decided. Sarjoog Singh's case are not covered by any of the decisions of the Madras and the Allahabad High Courts or of the Privy Council. I am not prepared to say that a beneficiary can maintain a suit on a promissory note without any reservation or restriction. But in a case where in effect the suit is by the holder himself different considerations arise and I see no reason why the suit should be dismissed. I may here refer to the case of Swaminatha Odayar v. Subbarama Ayyar where this principle was followed. In that case plaintiff no. 1 sold some properties to the defendant and for the balance of the purchase money took from him a promissory note in favour of his mother plaintiff no. 2. Plaintiff no. 1 then wanted to enforce his lien on the property sold for the balance of the consideration money. It was held that the plaintiff no. 1 having accepted a promissory note for the balance of the consideration money his lien was lost, but as the holder (plaintiff no. 2) was willing that a simple money decree on the basis of the hand-note be passed in favour of the plaintiff no. 1, the beneficiary, this was done.

The learned Munsif should not have dismissed the suit on the preliminary ground and should have allowed the plaintiff an opportunity of producing the holder to support the plaintiff's case and give a discharge to the defendant if he wanted. I am also of opinion that if the holder wishes to be made a plaintiff, he ought to be allowed to do so. I have already referred to the decision of Allansori, J. in Ramdas Sahu v. Chhotalal Mander where the learned Judge held that such a transposition of the defendant to the category of the plaintiff should not be allowed as it would deprive the defendant of a valuable right. With utmost respect I disagree with him. First of all, in suits for money efflux of time only bars the remedy through Court but does not destroy the right and does not vest any right in the defendant. Section 28 of the limitation Act is confined to immoveable properties. Secondly, the legislature has by enacting sub-clause (2) of section 22 of the Limitation Act, recognized that if a person is a party to a suit, his change of position will not affect limitation; and it was to meet cases like these that it has been provided that if a party already on the record is transferred from the category of the defendant to that of the plaintiff or vice versa, provisions of clause (1) will not apply; and I think, in a proper case the Court will be exercising a wise discretion if it allowed such transpositions in order to give relief to an aggrieved party. To disallow this on the ground given by the learned Judge will be defeating the very object which the legislature had in view.

I would, therefore, remand this case to the first Court for trial on the merits. If defendant no. 4, the alleged benamidar, applies to be made a plaintiff in the suit, this will be allowed and the suit disposed of on the merits on the lines I have indicated. In the circumstances of the case, I think the parties should bear their own costs, so far incurred by them. The costs of rehearing will abide the result of the suit.

Dhavle, J.:— I agree.

Rule made absolute.

Case remanded.