MATHURA PRASAD Vs. MOHD. UMAR KHAN AND ANOTHER

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree of the learned Civil Judge, Aligarh, dismissing his claim against defendant No. 1, while decreeing it against defendant No. 2.

(2.) THE suit giving rise to this appeal was filed by Sri Mathura Prasad on the 31st of March 1951 against defendants Nos. 1 and 2 for the recovery of Rs. 18,100/- from them on the basis of a pronote executed by defendant No. 1 in favour of defendant No. 2. According to the plaintiff, defendant No. 2 endorsed that pronote in his favour for consideration and the plaintiff being thus the holder in due course of that pronote was entitled to recover the amount due on it from both the defendants.

(3.) ON the main issue, namely issues Nos. 5 and 6 the learned trial judge held that the plaintiff was not a holder in due course, though he was a holder for consideration and as such entitled under Section 59 of the Negotiable Instruments Act to all the rights of his transferor i.e. respondent No. 2. On issue No. 2 h 3 held that the pronote was for consideration. On issue No. 3 he held that as the plaintiff was aware that the amount under the pronote could not be realised till either the Collector refused sanction to defendant No. 1 to sell the villages concerned to defendant No. 2 or defendant No. 1 refused to self them to defendant No. 2 after sanction to their sale was accorded by the Collector or they were released by the Encumbered Estates Department, and as none of these conditions had been fulfilled by the date the suit was instituted, the same was premature against defendant No. 1. He, accordingly, dismissed the suit with costs against defendant No. 1 and decreed it against defendant No. 2 with pendente lite and future interest at the rate of 3% per annum simple and costs, including costs which were payable by the plaintiff to defendant No. 1. Defendant No. 2 submitted to the decree, but the plaintiff feeling dissatisfied has preferred the aforesaid appeal to this Court.