VYASYARAJU VENKATARATANAM RAJU Vs. DAMODAR SAHU

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the original decree passed by Sri R. C. Misra, subordinate Judge of Berhampur, dated 27-1-1948, in Money Suit No. 180 of 1946. The plaintiff's suit was based upon a handnote, (Ext. I), dated 31-8-1944, for a sub of Rs. 15,000/- payable with interest at 12 per cent per annum. The defendants were the members of a Hindu joint family till 1943, when a partition suit, O. S. 23 of 1943 of the Court of the Subordinate Judge, Berhampur was filed. The defendants own a sugar mill and a distillery at Aska and a saw mill at Russelkonda. During the pendency of the aforesaid suit, defendants 1 and 2 were appointed as receivers and defendant-as receiver was in-charge of the above mentioned two mills along with certain other landed properties. In the year 1944, the defendant No. 1 Receiver, was in need of depositing with the government a sum of Rs. 15,000/- for continued work in the distillery at Aska. Accordingly, the defendant-1 filed a petition before the Subordinate Judge for permission to raise the said loan and permission was granted by the Court on 238-44 (Vide Ext 3 ). After the permission was obtained the defendant 1 contracted the suit-loan and executed the promissory note as mentioned above. The plaintiff deposited the said sum of Rs. 15,000/- as revenue deposit on behalf of Messrs. Damodar Sahu and brothers on 1-9-44 (vide Ext. 2 ). Since the defendants did not make any payment, the plaintiff instituted the present suit on 19-11-1946 for recovery of Rs. 19,000/from the defendants.

(2.) THE first defendant admits the execution of the promissory note and the receipt of the consideration thereunder. He further stated that the Provincial Government in its Revenue Department directed him to deposit the amount of Rs. 15,000/- in the treasury as advance of the cost of jaggery which was then one of the controlled commodities and was being supplied to the distillery by the government. He, therefore, obtained the necessary permission of the Court and incurred the loan for furtherance of the family business, and as such, all the defendants are liable for repayment of the said loan. Defendants 2, 3, 20 and 23 averred that order No. 132 dated 23-8-1944, passed by the learned Subordinate Judge while granting the permission does not authorise the receiver (defendant No. 1) to raise the suit-loan so as to bind by family. The said loan, if any, has been incurred by the defendant No. 1 on his personal responsibility and he bad spent the income collected therefrom. It was further averred that order No. 132 was superseded by an order of the Circut Court of the high Court of Patna and that there has been no joint family in the strict sense of the term since the 6th October, 1942, when defendant No. 3 before filing the said partition suit served registered notices, demanding partition, to most of the defendants. Accordingly, the defendant 1 has no longer the power to act as the manager of the joint family of the defendants. A specific plea was taken on behalf of the defendant no. 2 that he is not liable as receiver since he is not a party to the suit promissory note. The defence of defendants 15 to 17 and the minor defendants 5, 8, 12 and 14 are almost in the same terms. The rest of the defendants did not enter appearance at all.

(3.) ON the above pleadings, the two main issues raised were: (1) Whether the order No. 132, dated 23-8-1944, authorised the 1st defendant as receiver to raise the suit loan so as to make it binding on the family estate, or the estate in the receivership of the 1st defendant? (2) Whether the suit pronote is true and supported by consideration and binding on defendants 2, 3, and 20, 22, 23 and 24.