BADRI PRASAD JHUNJHUNWALLA Vs. BABULAL JHUNJHUNWALLA

JUDGEMENT

(1.) THIS is an appeal from an order made by the learned Subordinate Judge at Asansol, directing an attachment before judgment. The suit is on a loan which was said to have been advanced by the plaintiffs to one Kaliprosad Jhunjhunwalla who was in charge of a business. Kaliprosad being dead the suit has been brought against the members of the family which carried on that business.

(2.) THE plaintiffs applied for attachment before judgment in respect of their claim in this suit of a certain decree which had been passed in favour of defendant 1 who is the senior most member of the family, on 28th January 1948. Notice was issued by the learned Subordinate Judge which was served by affixation at the door of the residence of the defendants. The defendants' case is that they did not get this notice and in those circumstances they did not appear to show cause. The learned Subordinate Judge thereupon passed an order for attachment before judgment ex parte. Subsequently, the defendants made an application that they should be allowed to show cause and on that application the order appealed from was made.

(3.) THE next point that was raised was that the suit was defective inasmuch as the plaint showed that the money had been borrowed by Kaliprosad who it appears is now dead and that Kaliprosad was the son of defendant 1. It is contended that so long as the father is alive it is not possible under the Hindu law for the son to incur a debt which would be binding on, the joint family. It appears to us that as to whether Kaliprosad had the power to bind the entire family by a debt incurred by him is a question of fact. He could have been held out as a person who had the power to incur a debt for the purposes of the entire family. We do not propose at this stage to go into that question of fact. The learned Judge in the Court below had held on the prima facie evidence before him that Kaliprosad had power to bind the whole family and it has not been shown to us that that decision is in any way wrong. In those circumstances the second point taken on behalf of the appellant must fail.