GHASI PATRA Vs. BRAHMA THATI

JUDGEMENT

(1.) THE opposite party, as plaintiff, filed a suit for recovery of Rs. 500/- as principal and Rs. 120/- as interest. His case was that the defendant executed a promissory note Ext. 1 in his favour and took a sum of Rs. 500/. -. The case of the defendant-petitioner was that he did not execute any pronote, nor took any money from the plaintiff; that one Dolamani Patra had brought a tenancy case against the defendant and the plaintiff's father jointly challenging certain transfer made by the defendant in favour of the plaintiff's father; that the said Dolamani got a decree in that revenue case, and thereupon :the plaintiff's father and the plaintiff induced the defendant to file an appeal against that decree; that the defendant expressing his unwillingness because of shortage of funds, the plaintiff induced him to sign a document, so that they (the plaintiff and his father) would contest the revenue case in the Appellate court, and the defendant would have to pay no expenses on that account; that on that basis be signed the suit document without knowing that it was a promissory note. The trial Court, holding that the evidence on the plaintiffs side about the execution of the suit pronote and passing of consideration was discrepant and the refusal of the plaintiff to take special oath was without sufficient justification, dismissed the plaintiff's suit. The first court of appeal, holding that the defendant had admitted the execution of the suit pronote in his written statement and the discrepancy in the evidence on the plaintiffs side was too trifle to be taken notice of and that there was mo proper offer of special oath according to the terms of the Oaths Act, held that the defendant had executed the same and had incurred the loan thereunder. Though the appellate Court held that there was no provision for interest in the pro-note and no evidence of demand made by the plaintiff, it allowed interest at 6 per cent per annum under Section 80 of the Negotiable instruments Act, from the date of execution of the pro-note. Initially the petitioner filed a Second Appeal against the said decree of the appellate Court; but since section 102 C. P. C. had been meanwhile amended allowing no Second Appeal up to Rs. 1000/-, at the petitioner's instance the Second Appeal was converted to a revision petition.

(2.) THE following points were taken, up on be-half of the petitioner; (1) that since the suit pronote had not been properly stamped, it was hit by Section 35 of the indian Stamp Act, and no decree should have been passed thereon; (2) that there was no admission by the defendant about the execution of the suit pronote, and since the first court of appeal has relied on the defendant's statement as an admission, its finding about the execution of the suit pronote could not be sustained; (3) that since there was no provision for interest in the suit pronote and since there was no demand, interest should not have been allowed for any period prior to the institution of the suit. Another point that was also placed on behalf of the petitioner was that the petitioner was entitled to place his case on the footing of a Second Appeal, and he was not hit by the amendment of Section 102 C. P. C. , which came in long after the institution of the suit, though prior to the institution of the Second Appeal,

(3.) COMING to the last point first, I would say that the matter is concluded by a decision of a Division Bench of this Court, reported in Kamal Nayan v. Bira Naik, ilr 1950 Cut 663: (AIR 1951 Orissa 141 ). It has been held therein,