BHADRAKALI LAKSHMI Vs. VELAPPAN NAIR

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is from an order of remand. Defendants 2 and 3 are the appellants. The plaintiffs sued on a chitty security bond alleged to have been executed by defendants 1 to 3 in favour of the first plaintiff. The first defendant contended that the bond was materially altered and had therefore become unenforceable, and that he had paid more amount than was admitted in the plaint Defendants 2 and 3 denied execution of the bond. While the suit was pending in the Trial Court, the first defendant died On 21-6-1960. On 19-9-1960 the plaintiffs applied for recording defendants 2 and 3 as the legal representatives and this was allowed. Another application was filed by the plaintiffs on 3-10-1960 stating that there were other legal representatives also to be impleaded and praying for impleading them. This application was dismissed. The Trial Court held that the execution of the bond by defendants 2 and 3 was not proved. The plea of material alteration was found against. The suit was dismissed as against all the defendants as the bond was held to be not genuine so far as defendants 2 and 3 were concerned. The plaintiffs appealed and the lower appellate court remanded the suit holding that all the legal representatives of the first defendant ought to have been impleaded and that an issue on the question of partial discharge pleaded by the first defendant should have been raised. It was also observed that a decree could have been passed against the first defendant as the only plea raised by him was found against. It was urged on behalf of the appellants that the lower appellate court should not have directed the impleading of other legal representatives of the first defendant. The question whether the application dated 13-10-1960 was rightly dismissed by the Trial Court was one which could properly be considered in the appeal. There is authority for the position that when some of the legal representatives are impleaded within the time prescribed, an application to implead other legal representatives will be governed not by Art.177 but Art.181 (See Venkaramayya v. Munnemma (AIR 1963 Andhra Pradesh 406). It cannot be said that the view taken by the lower appellate court on this point is wrong. The application of 13-10-1960 was made within the period allowed for setting aside the abatement and even if it is assumed that the suit abated as against the first defendant, the application could have been treated as one to set aside the abatement. The decisions relied on by the appellants have no application to a case such as this where some of the legal representatives have been impleaded in time.

(2.) Another ground on which the suit was remanded was that there was no issue regarding the question of partial discharge pleaded by the first defendant. Such an issue is necessary for a proper disposal of the suit.

(3.) The only point which remains is whether the lower appellate court was justified in expressing the view that a decree could have been passed against the first defendants estate as the first defendant admitted execution of the bond. The ground on which he sought to escape liability was that the bond was materially altered by the plaintiffs. This was found against by the Trial Court. As the suit has been remanded to the Trial Court for fresh decision, it may be left to that court to decide whether a decree can and ought to be passed against the first defendants estate even if it is found that defendants 2 and 3 have not joined in the execution of the bond.