GUDLA VENKATARATNAMMA Vs. SINDHIRI SATYANARAYANA

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal against an order dismissing his suit by both the courts below. The plaintiffs commenced a suit for recovery of a certain sum of money on the foot of a promissory note. The defendant admitted the execution of the said promissory note, but denied the receipt of the consideration thereunder. His defence was that the plaintiffs assured him that the money would be paid to one L.K Biswanadham within a few days of the execution of the handnote; but they never paid it to him, and thus he was not liable.

(2.) AFTER some evidence was recorded at the trial, the plaintiffs filed a petition on 29 -9 -51 for a special oath to be taken by the defendant to which he agreed in writing. The trial court accordingly issued a writ for administering the special oath fixing 16 -10 -51 for return. Since the plaintiffs took objection that the defendant must repeat all the averments in his written statement on special oath the defendant was not agreeable and consequently, it was returned unexecuted on 25 -10 -51. After another unsuccessful attempt to get the writ executed, the trial Judge finally issued a writ with a direction to the commissioner to administer the oath in accordance with the plaintiffs' petition dated 29 -9 -51. The oath was Ultimately administered and the writ was received executed in Court on 21 -1 -52. The plaintiffs not being satisfied, filed their objections both before the Commissioner as well as in Court. The trial Judge, however, on 22 -1 -52 accepted the report of the Commissioner and dismissed the suit. Against this dismissal of the suit, the plaintiffs carried an appeal to the District Judge. The lower appellate court held that the special oath is binding on the plaintiffs and the dismissal of the suit is in accordance with law. It was further held that it would not only bind the major plaintiffs, but it would also bind the minor plffs as well. It is against the appellate decree that the present second appeal is directed.

(3.) BEFORE dealing with the above contentions, I would like to state the nature of the special oath intended to be administered. The plaintiffs challenged that if the defendant by placing his hand on the head of his son in the present of Nilakantheswar of Iswar Temple at Gunupur says that he did not receive the consideration under the suit pronote, and that the statements made in the written statements are true, the plaintiffs would forego the claim in suit. The relevant portions of the petition dated 29 -9 -51 are in the following terms : 'I did not receive the consideration under the suit pronote and the writ -ten statement allegations are true'.