Ramakrishen and Another vs Ranga Kishtiah and Others

This is a first appeal by the Plaintiff against the judgment and decree of the City Civil Court dated 13th Aban 1347 F. dismissing the Plaintiff''s suit. The suit was filed by the Plaintiff on the basis of a promissory note executed by Shankariah and his sons Defendants 1 to 4 for Rs. 6,200/-. Shankariah died before the institution of the suit. Defendant:-. 1 to 4 as executants of the pronote and Defendants 5 to 7 as the legal representative of the deceased ''Shankariah were made parties to the suit. The Plaintiff''s allegation was that the deceased was the manager of the family. He, as manager along With his sons, the Plaintiff alleged, executed the pronote for debts '' due to the family which in spite of demand was not paid. The Plaintiff stated that the Defendants are jointly and severally liable and therefore prayed that a decree for the amount stated in the plaint be passed in his favour. The Defendants in their joint written statement admitted that their family was joint family but denied the execution of the promissory note and pleaded that it was without consideration, and that Defendants 5 to 7 were not at, all responsible for the debts of their father. On these pleadings, the lower Court framed issues and recorded the evidence of three witnesses on behalf of the Plaintiff and three on behalf of the Defendants, and dismissed the Plaintiff''s suit holding that the execution of the promissory note was not proved. This appeal has been preferred against this decree.

We have gone through the evidence and we find that the lower Court''s opinion that the execution of the promissory note is not proved is not correct. (After narrating the evidence their Lordships proceeded:)

3-4. The discrepancies shown by the Advocate on behalf of the Respondents in Plaintiff''s witnesses do not at all impress us. The first discrepancy shown is that P.W. 1 states that Ranga Shankariah did not execute the pronote in his presence, while the other witnesses state that Ranga Shankariah put his thumb impression in their presence. This cannot be called a discrepancy because this witness did not accompany the other witnesses to the Hospital. Another discrepancy shown is that Ramchandar P.W. 3 stated that the accounts were explained to Ranga Shankariah some five or six months before the execution of the pronote but the other witness states that accounts were explained to him in the Hospital, but this is not correct. The other winters has not stated like that. Thus, in our opinion, the Defendant''s witnesses do not, in any way, rebut the evidence of the Plaintiff and we hold that the execution of the pronote is proved and the lower Court''s judgment is not correct.

On behalf of the Respondent it is contended that on 6th Shehrewar 1354 P. the appeal so far as regards legal representatives of Respondent. 2 Ranga Baliah are concerned was dismissed as no costs were deposited for summoning the guardian of the minor legal representatives of Respondent 2. When the appeal was dismissed as against the legal representatives of Respondent 2, the whole appeal must; be dismissed as without the legal representatives of Respondent 2 the appeal was not maintainable. 35 Deccan LR 226 (A) and--17 Deccan LR 509 (B)'', are cited in support of this contention. No doubt on 16th Shehrewar 1354 P. the appeal was dismissed as against the legal representatives of Respondent 2 but when we look to the pronote under dispute we find that the executants have taken the responsibility of paying the debt jointly and severally. When the liability is several, if one of the Defendants dies and his legal representatives are not brought on the record, the whole suit does not abate. In the case of Nathuni Narayan Singh and Others Vs. Mahant Arjun Gir and Others, (C), it was held that:

Where a joint decree is passed against several Defendants but one of them has died before the passing of the decree, the decree is not a nullity as against all the Defendants but fails only as regards the deceased Defendant and his heirs.

Similarly in the case of Narayan Krishna Rao v. Badridas AIR 1945 Nag 271 (D), it was held that:

Each tenant is liable jointly and severally to pay the rent. The mere fact, that the legal representatives of one of the co-tenants have not been joined as parties to the appeal does not result in the abatement of the entire appeal.

The case of--''17 Deccan LR 509 (B)'', does not support the contention of the Respondent. In this case the legal representatives were brought on the record in the lower Court and as they were not made parties in the appeal it was held that the appeal is not maintainable. In the case of 35 Deccan LR 236 (A), it was held that when there was no specific mention in the plaint about the mesne profits to which the Defendant is entitled separately and if the suit for mesne profits is dismissed against one Defendant then the whole appeal abates. This case is not relevant for our purpose because the Defendants were not severally liable while in the case under consideration the Defendants are severally liable. Under such circumstances, this case also is not helpful to the Respondent. In view of these facts, the contention of the Respondent that the whole appeal abates does not hold good and the appeal shall abate only to the extent of the legal representatives of Respondent 2. We pass a decree in favour of the Plaintiff for Rs. 6,793/- against all the Defendants except Defendant 2. Plaintiff is entitled to interest during the pendency of the suit (until realisation in full) at the rate of 3 percent per annum on the principal amount viz., Rs. 6,200/-. We award him costs of both the Courts.