SURAJMAN PRASAD MISRA Vs. SADANAND MISRA

JUDGEMENT

(1.) This is an application in revision directed against a decree of the District Judge of Gaya, dismissing the plaintiff's appeal against a decree of the Munsif of Aurangabad which in its turn dismissed the plaintiff's suit based upon a promissory note. The note in question is said to have been executed by defendant 1 as the manager of the joint family consisting of himself and his two sons (defendants 2 and 3) in favour of defendant 4 alleged to have been a benamidar of the plaintiff. The plaintiff averred that at the time when the loan (the consideration of the pro- note) was advanced he was a minor and therefore the note was taken in the name of defendant 4. The defence inter alia was a denial of execution of the pro-note, the passing of the consideration and the plaintiff's right to sue.

(2.) The trial Court without going into the merits dismissed the suit. It held that under Section 78, Negotiable Instruments Act, the holder (as defined in Section 8) was the only person who could give discharge to the drawer and therefore no other person was entitled to maintain the suit. It relied upon two decisions of the Madras High Court and a decision of a learned Judge of this Court sitting singly in

(3.) Ramdas Sahu V/s. Chhota Lal A.I.R. 1928 Pat. 24. The last case did not however decide the question and I shall refer to it later. Another Single Judge decision of this Court in Sarjoog Singh V/s. Deosaran Singh A.I.R. 1930 Pat. 313 taking a contrary view does not seem to have been brought to the notice of the learned Munsif. On appeal the learned District Judge dismissed the appeal. Sarjoog Singh's case A.I.R. 1930 Pat. 313 and the decision of the Calcutta High Court in Brojo Lal Saha Banikya V/s. Budhnath Pyari Lal & Co. , on which it was based, was brought to his notice, but he preferred to follow the Madras and the Allahabad decisions as being in his opinion more in consonance with the Act. In my opinion the decision of a single Judge of this Court, though not binding on us sitting in a Division Bench, being nevertheless the decision of a superior Court ought to have been followed by the learned District Judge and in not doing so he has acted with material irregularity in the exercise of his jurisdiction.