MR. Ameer Ali :- The question for determination in this appeal lies within a very narrow compass. The plaintiffs, Robert Skinner and Thomas Skinner better known by their Indian names of Sultan Mirza and Sirdar Mirza, and the principal defendant Hercules Skinner are the descendants of a well-known Anglo-Indian soldier of fortune who settled in Northern India. They appear to own considerable landed property in the district of Hissar. The second and third defendants are the members of a joint Hindu family carrying on a money-lending business in the district of Bulandshahr. For the purpose of this Judgment the name of Badri Kishen alone will be used as representing their joint business. In June 1900, the plaintiffs, with other members of their branch of the family, granted to Badri Kishen, a lease of their property for a term of years. On the same date Badri Kishen obtained from Hercules Skinner a lease for a similar period of his property in the Hissar District. At or about the same time the plaintiffs entered into a loan transaction with Badri Kishen, under which he agreed to advance them money to the extent of a lac of Rupees on terms which are not material here. This loan transaction was called ''Their cash and credit account" and evidently represented a running account in Badri Kishen's books. Badri Kishen appears to have defaulted in the payment of his rent under the two leases. Hercules Skinner pressed him to discharge his liabilities, certainly under his own lease. In February, 1903, the plaintiffs were clearly indebted to Badri Kishen for a large amount on "their cash and credit" account, and on the 17th of that month he wrote to Hercules Skinner a letter in the following terms "Dear Mr. Robert Herculas, "Compliments, When Sirdar Mirza Saheb pays the amount of my cash credit, you should first realise from him the entire amount due to you together with the amount of interest agreed. I shall allow a credit to him for the same. (Sd.) Badri Kishen Dated 17th February 1903." This letter was evidently shown by Herculas Skinner to the plaintiffs and they appear to have regarded it as an authorisation on Badri Kishen's part as certainly it was, for them to pay the money they owed to him to Hercules Skinner in part satisfaction of his liability under the leases he held. (Sd.) Badri Kishen Dated 17th February 1903." This letter was evidently shown by Herculas Skinner to the plaintiffs and they appear to have regarded it as an authorisation on Badri Kishen's part as certainly it was, for them to pay the money they owed to him to Hercules Skinner in part satisfaction of his liability under the leases he held. It is not disputed that in accordance with this authorisation they paid Rs. 40,000 to Herculas Skinner to the credit of Badri Kishen's account. On the 9th February 1904, when this amount was paid, Herculas Skinner gave the following letter to the plaintiffs :- "Meerut 9th February, 1904 My dear Bhai, "The amount of Rs. 40,000 (forty thousand) you have paid me through the Bank of Upper India, Meerut, to-day on account of the amount due to me from K. Badri Kishen, I write to say that should you be put to any costs or losses in any court for this particular amount, I shall recompense you. "Yours affectionate, Bhai Robert" This sum of Rs. 40,000 reduced protanto-Badri Kishen's liability in respect of Herculas Skinner's lease. The ascertainment of the balance left was referred to the arbitration of a retired Deputy Magistrate, Khan Bahadur Abdul Hamed Khan, who, after giving credit to Badri Kishen for the Rs. 40,000 paid on his behalf by the plaintiffs, and for other sums alleged to have been paid by him, found that a certain sum was still due from him to Herculas Skinner, and made an award to that effect. This award was made on the 25th October, 1905. There were three parties arrayed before the arbitrator, viz., Badrikishen as the first party, the plaintiffs and other members of their branch of the family as second party, and Hercules Skinner as the third party. With regard to the payment of Rs. 40,000 of the credit of Badri Kishen, the arbitrator expresses himself thus : "The third point at issue also relates to the first and the third parties, and the second party has nothing to do with it. The third party contends that he received Rs. 40,000 from the first party through Sirdar Mirza and others. Besides this he received Rs. 20,000 from the first party in different sums. The sum of Rs. The third party contends that he received Rs. 40,000 from the first party through Sirdar Mirza and others. Besides this he received Rs. 20,000 from the first party in different sums. The sum of Rs. 40,000 is not in question." And again after finding the balance due to Hercules Skinner he says : "This amount of Rs. 35,000 is besides that amount of Rs. 40,000 which the third party admits to have received through Sirdar Mirza on behalf of the first party." Badri Kishen thereafter put forward a claim against the plaintiffs on their "cash and credit account." In this claim he gave them no credit for the Rs. 40,000 they had paid on his behalf to Hercules Skinner and which had gone to satisfy part of his liability; they on their side claimed that it should be taken into account. The matter was referred to the arbitration of the same officer, who for some inexplicable reason refused to give them credit for the said sum of Rs. 40,000 and made an award for the full amount claimed by Badri Kishen. The plaintiffs thus have had to pay Rs. 40,000 over again. They now sue Herculas Skinner on the letter of the 9th February, 1904, which they contend is a letter of indemnity under Sec. 124 of the Indian Contract Act. They made Badri Kishen and his brother parties to the action but claimed no relief against them. Hercules Skinner denied liability, and the Subordinate Judge who tried the case in the first instance dismissed the suit, holding that it was barred by the first award as res judicata under section 11 of the Civil Procedure Code, and his decree has been affirmed on appeal by the High Court. The present appeal to their Lordships is from the decree of the High Court. Their Lordships do not agree with the Subordinate Judge that the suit is barred under Sect. 11 of the Civil Procedure Code. The question that has now arisen between the plaintiffs and Badri Narain was never before the arbitrator, nor so far as their Lordships can see, was it included in the reference to him. The action, however, seems to have been wholly misconceived. It was based on the letter of indemnity which on the facts stated was clearly discharged. The question that has now arisen between the plaintiffs and Badri Narain was never before the arbitrator, nor so far as their Lordships can see, was it included in the reference to him. The action, however, seems to have been wholly misconceived. It was based on the letter of indemnity which on the facts stated was clearly discharged. Hercules Skinner had received the money from the plaintiffs on Badri Kishen's account and had paid it into his account. And Badri on his side had obtained credit for that amount. Whatever rights the plaintiffs had in respect of that money were against Badri. But unadvisedly they allowed the matter to go to arbitration and had an award made against them for the whole amount unwarrantably claimed by him. In this suit also they have made no claim against Badri. Counsel for the plaintiffs applied for leave under Sec. 153 of the Civil Procedure Code to amend the plaint, but their Lordships see no reason for granting the prayer at this stage. In their 'Lordships' opinion the appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly. Appeal dismissed.