K LAXMINARAYAN Vs. V GOPALASWAMI

JUDGEMENT

(1.) V. Gopalaswami brought big money suit on the foot of a promissory note originally in the Munsifs Court, Secunderabad on 5-12-1955, which was registered as O. S. No. 132/1 of 1955, against two defendants, the first of whom is the executant and the second the surety. Objection was taken that it being a suit of a small cause nature it should have been brought before the District Judges Court. This plea eventually prevailed and the plaint was returned on 6-10-1956 and was presented on the same day before the District Judges Court, Secunderabad. On account of the integration of City Civil Court, this case thereafter was transferred to the City Small Causes Court Hyderabad, and was disposed of as S. C. No. 24/2 of 1959. The proceedings were ex parte against the 2nd defendant. Only the executant, i.e., the 1st defendant, contested the suit on the ground that the execution of the promissory note was a result of coercion and fraud. It was stated that the plaintiff had a lorry of the defendant in his possession and was saying that he had spent money on repairs of the lorry and was not prepared to return it unless a pronote was executed. He however promised to give accounts later. The defendant thereupon executed the pronote in faith of his words. His contention is that the plaintiff had used the defendants lorry for 31 trips between Vikarabad and Sadasivpet and 16 trips between Chilkoor and Erragadda,

(2.) There was an agreement duly executed which contained a clause that the amount payable to the defendant will be adjusted towards 50% of the dues payable to the plaintiff. The case of the defendant is that the plaintiff did not in fact pay any thing for the repairs of the lorry and that if accounts are taken, he (Plaintiff) will be due large sums to the defendant himself. A plea with regard to limitation also was taken. The plaintiff admitted the execution of the agreement Ex. B. 3. As a result of enquiry, the learned judge of the Court of Small Causes came to the conclusion that no doubt no cash consideration at the time of execution of the promissory note did pass, but the pro-note was indeed supported by consideration. In relation to the agreement executed between the parties, he came to the conclusion that some of the entries were signed by the plaintiff himself and the payment of about Rs. 600.00 may therefore be held to be proved. He did not however accept the other payments. During the pendency of the suit when the evidence was not yet adduced, the plaintiff died, and his legal representative, his Son, was brought on record. Objection was raised that the L. R. cannot get a decree without producing succession certificate. The L. R. thereafter produced a succession certificate, which he had obtained earlier but the suit was not included therein. The learned Judge came to the conclusion that since the suit was filed by the original creditor himself. Section 214 of the Indian Succession Act has no application to his son who was brought on record as his L. R. In this view of the matter, he decreed the suit to the extent of Rs. 600.00 only with proportionate costs against the 1st defendant-executant. The 1st defendant therefore has come in revision.

(3.) The main point urged in this revision petition is that without producing the succession certificate a decree could not have been passed. The next argument is that the suit was barred by limitation. The third contention is that the suit-could not be decreed on the merits as well.