MOHAMMAD MOHTASHIM Vs. JOTI PRASAD

JUDGEMENT

(1.) This is an appeal by Sayid Mohammad Mohtashim and Sayid Mohammad Mohtarim who were defendants in suit No. 48 of 1936. The suit was brought by Lala Joti Prasad for the recovery of a certain sum of money on the basis of a promissory note executed by the two defendants on 1 December 933. There was another suit No. 488 of 1934 filed by Sayid Mohammad Mohtashim and Sayid Mohammad Mohtarim against Lala Joti Prasad under Section 33, Agriculturists Relief Act. The Court below disposed of the two suits by a single judgment. In the suit brought by the debtors under Section 33, the Court below came to the conclusion that a certain sum of money was due by the debtors to the creditor and a declaratory decree under the provisions of Section 33(2) was given to the debtors. In the suit filed by Lala Joti Prasad the Court below came to the conclusion that the identical sum of money found due in the other case was payable to Lala Joti Prasad from the debtors. In the suit of the creditor the Court below passed a decree for the recovery of a certain sum of money. We might repeat that the same sum of money was found due from the debtors in the connected suit. The defendants have filed the present first appeal in the suit by the creditor against them. They have not filed any appeal in the suit which they themselves filed under Section 33 and in which it was declared that the same sum of money, as found due in the present case, was payable by them to Lala Joti Prasad, the creditor.

(2.) A preliminary objection has been taken that by reason of the failure of the present appellants to file an appeal in the suit for accounts filed by them, the present appeal is incompetent, and reliance is placed on the Full Bench decision of this Court in Zaharai V/s. Debia ( 11) 33 All 51. In reply to the preliminary objection our attention is drawn to another Full Bench decision of this Court in 45 ALL 506.2 We may mention at once that 33 ALL 511 was not overruled by the subsequent Full Bench decision; on the contrary there are observations in the judgments of all the learned Judges that 33 ALL 511 was correctly decided and was applicable to cases where the facts were similar. All that was held in the subsequent Full Bench was that under certain circumstances it might not be necessary for an aggrieved party to file two appeals, more particularly when one of the appeals in the lower Court was decided in favour of that particular party and when the points in dispute in the two appeals were clearly distinguishable. The mere fact that an identical paper decree was passed in two cases was not enough. From what we have said above it is clear that the facts in this case are very similar to the facts in 33 ALL 511 and the authority of that case is binding on this Bench. The position, therefore, is that the defendants-appellants cannot be permitted to agitate before us that the sum which has been decreed to the plaintiff is liable to reduction. There is, however, one other point in the present appeal, and it is that the Court below while passing a decree in favour of the plaintiff and granting instalments to the defendants fell into a slight error. The operative portion of the order about which-grievance is made is to the following effect:

(3.) In case of default being made in payment of any three instalments the entire decretal amount, minus the amount paid, shall fall due at once.