JIA BAI Vs. JOHARMULL BOTHRA

JUDGEMENT

(1.) In this case the plaintiff applied for execution upon a tabular statement in respect of two sums of money--first of all, in respect of a sum of Rs. 2,000 out of Rs. 2,500 allowed to her by the decree of Buckland, J., dated 23 May 1929, in the suit; between the parties; and secondly, for Rs. 534-11-6-- the amount of costs awarded to her upon an application by her that the bond which the respondent Joharmull Bothra had given as surety should be assigned to her (plaintiff) for enforcement. The learned Judge has not in any way dealt with the question of the sum of Rupees 534-11-6. He has dealt in his judgment only with the question of Rs. 2,500.

(2.) The position is this: The plaintiff, one Jia Bai, a lady who claims to have recently attained majority brought a suit being Suit No. 1688 of 1927 in this High Court against two defendant firms. Her case was that during her minority her father had deposited certain sums of money on her account at 9 per cent par annum interest with yearly rests with the firm of Radha Kissen-Gopi Kissen, that this firm came to an end in 1923 but one of the partners continued the business under the name of Radha Kissen-Kedarnath and that the deposit belonging to the plaintiff came to the hands of Radha Kissen-Kedarnath who continued to act as depositees, accountable to the plaintiff on the same terms as the previous firm had been. The defendant firm Radha Kissen-Kedarnath pleaded, first of all that the plaintiff was not of age at the time she brought her suit and that the suit was therefore incompetently brought. They agreed that the firm of Radha Kissen-Gopi Kissen had ceased to point in 1923, They agreed that moneys and been deposited with that firm as alleged by the plaintiff. They further pleaded that upon that firm ceasing to entry on the business one of the partners started a new firm--being the firm of Radha Kissen-Kedarnath on whose behalf the written statement had been filed. They further pleaded that at that time a sum of Rs. 1,251-10.3 was the total sum due to the plaintiff for principal AND interest and that sum was with the knowledge and consent of the plaintiff's father transferred to them and continued to carry interest at the rate of 3 per cent. So that subject to any little adjustment there might be about the question of figure, the plaintiff's case to substance was really confessed by the written statement, There was a further dispute as to whether the plaintiff was entitled to interest at 12 per cent. as the purported to claim by reason of a notice given under the Interest Act. The defendants further pleaded that they were all along ready and willing to pay the amount due to the plaintiff if they could get a good discharge but there was some difficulty in getting a discharge as there was no guardian for the plaintiff. Finally, they said that they did not admit that the amount due was as much as Rs. 2,076, the amount claimed.

(3.) The written statement was filed in December 1927, but before that time, when the pleadings closed, an application had been made to this Court under Ch. 13-A of the rules for summary judgment and the defendant firm had been given conditional leave to defend upon their giving security to the satisfaction of the Registrar of this Court in the sum of Rs. 2,000. On that occasion which was in September 1927, the present respondent, Joharmull Bothra came forward as surety and the form of the bond he entered into was this: The condition of the above written bond or obligation is such that if the said Radha Kissen Mohata shall pay and satisfy the claim for principal, interest and costs under decree that may be passed in the said Suit No, 1688 of 1927 to the extent of Rs. 2,000, or if the said No. 1688 of 1927 shall be dismissed, then this bond or obligation shall be void and of no effect; otherwise, the same shall remain in full force and virtue.