MAHENDRA MOHANTY Vs. KHIRA BEWA AND ORS.

JUDGEMENT

(1.) THIS is a civil revision filed by the Defendant under Section 115 of the Code of Civil Procedure against the appellate judgment of Sri B.K. Patra, A additional District Judge of Cuttack, as a second appeal is barred under the provisions of Section 102 of the Code of Civil Procedure. The matter arises out of a suit for recovery of a sum of Rs. 370/ - on the basis of a handnote dated 5th July, 1953 for a principal amount of Rs. 340/ -. The defence was two -fold: (1) that the suit handnote was not for consideration and further that there was no due execution of the hand note, the Defendant having presented only a blank sheet of paper containing the thumb impression of the Defendant by way of security, and (2) that the suit must be dismissed on account of the non -compliance with the provisions of Rules 11 and 12 framed under the Orissa Money -Lenders Act.

(2.) BOTH the courts below have decided the first point against the defence contention. This being a decision on the basis of question of fact, Mr A.K. Das, learned Counsel appearing on behalf of the Petitioner, very fairly conceded that he cannot press the first contention i but nevertheless he concentrates upon the second contention that the Courts below exercised their jurisdiction with material irregularity in not having dismissed the suit as being not maintainable on account of the non compliance of the provisions of Rules 11 and 12 framed under the Orissa Money -lenders Act.

(3.) IN these circumstances, therefore, the Courts below manifestly have exercised jurisdiction with material irregularity in allowing a decree in favour of the Plaintiff where the suit, under the law, was not maintainable. Accordingly the suit is dismissed. The Civil Revision is allowed. In the circumstances of the case as the Defendant's contention that the hand note was not for consideration had failed, the parties are to bear their own costs throughout. Opposite party No. 4, who is a minor, is represented by Mr. P.V. Ramdas. Mr. Ramdas was present during the course of the hearing of this Civil Revision and he is entitled to withdraw the costs deposited in Court. Revision allowed.