MULKRAJ Vs. RAMDAS

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree of the Addl. District Judge at Jammu. The appellant instituted a suit under O. 21, R. 63 of the Civil P. C. in the court of the Subordinate Judge at Kathua. The first respondent (first defendant) resisted the suit on the ground that the suit was incompetent in view of the provisions of S - 47 of the Civil P. C. This contention found favour with the trial court which accordingly dismissed the suit as not maintainable. An appeal to the Addl. District Judge having proved unsuccessful, the plaintiff bag now come to this Court in second appeal.

(2.) THE second respondent (second defendant) has remained, ex parte throughout.

(3.) THE short facts of the case are these: The appellant instituted a suit in the Munsiffs court at Samba against the first respondent, Ram -das and the second. respondent, Jyoti Swarup for a debt due by deceased Ramditta who was the elder brother of the first respondent and father of the second respondent. That suit was transferred to the Chairman, Debt Conciliation Board at Kathua as required by the law which then obtained in the State, The Chairman, Debt Conciliation Board was under the law to perform, the functions of a civil court. On 25 -8 -2008 (Kikrami) the Chairman passed an order exonerating the first respondent Ramdas from liability on the ground that he had really no concern with the suit which was founded on a debt incurred by his deceased brother in his individual capacity at a time when Ramdas was not a member of the joint family. This order was passed when Jyoti Swarup, the other defendant, had not even* been served. Later, the Chairman transferred the case to the civil court on the ground that the Debt Conciliation Board had no jurisdiction to try the suit against Jyoti Swarup who was proceeded against only as the legal representative of a deceased debtor. The civil court duly tried the suit and passed a decree against Jyoti Swarup, the present second respondent. Ramdas, first respondent, was not on the record before the civil court and his name did not find a place in the cause title of the judgment or the decree.