VUNDAVILLI VENKATARAJU Vs. KORA LAXMAN RAO

JUDGEMENT

(1.) This Misc. Appeal has been filed under O. 43, R. 1(u) of the Code of Civil Procedure inter alia challenging the judgment passed in Money Appeal No. 3/1 of 1985/87 by the Addl. District Judge, Bargarh. Learned lower appellate Court set aside the judgment and decree passed in Money Suit No. 10 of 1983 and remanded the suit under O. 23, R. 23, C.P.C. for fresh disposal after affording opportunity to the plaintiff to file succession certificate within a time as would be just and reasonable. For appreciating the case, some of the facts are necessary to be discussed.

(2.) Admittedly, defendant No. 1-appellant took a loan of Rs.9,601.00 from the father of the plaintiff (R-1) and pro forma defendants 2 and 3 by executing a pro-note on 19/02/1980. On Fe 11/02/1983 the father of the plaintiff and pro forma defendants 2 and 3, Kora Surna, expired leaving behind the plaintiff and pro-forma defendants 2 and 3 as his sole survivors and legal heirs. Thereafter a notice was issued calling upon defendant No. 1 to repay the loan. As defendant No. 1 failed to do so, Money Suit No. 10 of 1983 was filed in the Court of the then Subordinate Judge, Bargarh for realisation of the loan amount including interest thereon and for other ancillary reliefs. Defendant No. 1 entered appearance and filed written statement. Apart from challenging the maintainability of the suit, it was contended that the pro-note was not supported by any consideration and was a forged one. Pro forma defendant No. 2 supported the plaintiff and pro forma defendant No. 3 did not contest the suit and remained ex parte.

(3.) The learned trial Court held that the pro-note Ext. 1 was supported by consideration and it was validly executed by defendant No. 1 and that the suit was maintainable and decreed the suit. Being aggrieved by the said decree, the defendants preferred Money Appeal No. 3 of 1985 in the Court of the District Judge, Sambalpur which was heard by the Addl. District Judge, Bargarh. Relying upon the provisions of S. 214(1)(a) of the Succession Act, it was contended by defendant No. 1-appellant that in the absence of a succession certificate, the suit was not maintainable. In support of his contention, a decision of this Court in the case of Aparti Panda v. Govinda Sahu, AIR 1984 Ori 1, was relied upon. The learned lower appellate Court accepted the submissions advanced on behalf of defendant No. 1-appellant and held that it was a fit case where the plaintiff should be given an opportunity to file succession certificate. On the basis of such finding, the judgment and decree of the trial Court were set aside and the suit was remanded to the Court below for fresh disposal after affording an opportunity to the plaintiff to obtain succession certificate and file the same in the suit. The said judgment as stated earlier is impugned in this Misc. Appeal.