SUDARSAN TRADING CO Vs. B T V RAJU

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgment and decree dated 21-7-1975 passed by the Prl. Civil Judge, Bangalore Dist., Bangalore in RA No. 74/ 1974 on his file, allowing the appeal and modifying the judgment and decree dated 30-10-1975 passed by the I Addl. II Munsiff, Bangalore, in OS No. 395/68 on his file, decreeing the suit of the plaintiff as prayed for.

(2.) The plaintiff is a registered company with its registered office at Calicut and branch office at Malleswaram, Bangalore. One of the purpose of the company is to run chit transactions. The 1st defendant Raju became a member of a chit group. At the 4th auction he was the successful bidder on 10-1-1964, at a discount of Rs. 1,250. He furnished the 2nd defendant as surety on 19-2-1964 and they executed a deed of simple mortgage hypothecating the immovable property described in the schedule. The amount of mortgage was Rs. 4,500 and interest to be paid was at 12% p.a. Thereafter the 1st defendant made payment amounting to Rs. 2,550. He failed to pay the balance in spite of demands. Hence, the plaintiff filed a suit for recovery of Rs. 4,500 + 1,980 towards interest in all Rs. 6,480, and the amount of Rs. 255 paid by the 1st defendant was deducted therefrom. Hence, the suit was for recovery of Rs- 6,225 on mortgage along with costs and future interest. It was discovered when summons were sent thai 2nd defendant was dead on 24-4-1968 and an application at IA I was filed to bring his LRs on record on 8-11-1968. Notice of the application was sen to the proposed LRs. But they did not file objections for bringing LRs on record. Hence, the suit was amended by bringing the LRs of the deceased 2nd defendant on record and the suit proceeded and ultimately the suit was decreed by the trial Court as prayed for. The LRs of the deceased 2nd defendant, however, weat up in appeal before the learned Prl. Civil Judge, Bangalore Dist., Bangalore, in RA No. 74/1974 and the learned Prl. Civil Judge, raised the following point as arising for his consideration in the appsal from the arguments addressed before him. (1) Whether the suit against the deceased 2nd defendant is maintainable? He held that the suit against the deceased 2nd defendant was not maintainable and in that view he modified the judgment and decree of the trial Court by deleting the liability against the LRs of the deceased 2nd defendant. Aggrieved by the said judgment and decree, the plaintiff has instituted the above second appeal before this Court.

(3.) The learned Advocate appearing for the appellant strenuously urged before me that when there were defendants more than one in a suit, the LRs of the deceased defendant could be brought on record in accordance with law since the suit did not become void ab initio. Hence, he submitted chat since the LRs were brought on record In accordance with law, the 1st appellate Court was not justified in holding that the suit against the deceased 2nd defendant was a nullity as he was dead before filing the suit and that the LRs could not be brought on record.