MADHUSUDAN RADHESHYAM JOPAT Vs. LAXMANRAO VITHOBAJI SAMARIT

JUDGEMENT

(1.) Heard the submissions advanced by the learned Counsel appearing on behalf of the respective parties.

(2.) This Second Appeal is filed challenging validity and legality of the Judgment and Order dt.6.3.2013 passed by the learned District Judge9, Nagpur in Regular Civil Appeal No.486 of 2009, by which the first Appellate Judge held that the plaintiff has not paid the amount of Rs.1,00,000/ to the defendant as a hand loan and hence, set aside the decree passed by the trial Court. The appeal arose from the Judgment and Order dt.19.8.2009 passed in Regular Civil Suit No.1 of 2002 by Civil Judge (Jr.Dn.), Kamptee, who had decreed the money suit finding that the plaintiff had issued a hand loan in the sum of Rs.1,00,000/ to the defendant for a period of two years by executing promissory note dt.26.11.1999 and the defendant failed to repay the loan amount as promised by him. The amount was to be repaid by 25.12.2001, but remained unpaid. Thus, the decree was passed directing the defendant to pay a sum of Rs.1,00,000/ along with interest @ 6 % p.a. from the date of suit till realisation.

(3.) It is the grievance of the learned Counsel for the appellant that though money decree was passed by a reasoned judgment, but the first Appellate Court, without hearing submissions advanced on behalf of the original plaintiff, proceeded to set aside the decree and directed dismissal of the suit. The said contention that the present appellant was not heard by the first Appellate Court is seriously opposed on behalf of the respondent on the ground that the appeal which was dismissed in default of appearance in the first Appellate Court was restored and re heard. While, according to the learned Counsel for the appellant, the appeal was not reheard as the present appellant was not knowing about the proceeding for restoration and therefore, there was no question of rehearing of the appeal.