GOKHUL BIHARI PANDE Vs. KHIJHU RAI

JUDGEMENT

(1.) This is an application under Section 25, Provincial Small Cause Courts Act, against a decree in favour of plaintiff-respondent against the applicants who were defendants 1 and 4 in a suit for recovery of Rs. 178 and interest. The contentions on behalf of the applicant are, first, that the suit did not fall within the Act; and, secondly, that defendant 2 having applied for insolvency no Court except that of the District Judge had any jurisdiction. In my judgment neither of these points is tenable. As regards the first point, the suit was originally brought under the ordinary procedure. The Munsif himself converted it into a Small Cause Court suit. The joint family consisting of defendants 1 to 5 owed the plaintiff Rs. 156 for rent of land which they held shikmi under him.

(2.) Being unable to pay and being anxious to get more money, they borrowed Rs. 22 from their creditor and for the whole debt of Rs. 178 they executed, on 13th August 1929, a rehun bond for the whole sum which included the usual personal covenant to pay. The suit was brought on 2 August, 1932, on the personal covenant only. In point of fact only three of the members of the joint family executed the bond namely, defendants 1, 2 and 4. Defendants 3 and 5 neither joined in the execution nor admitted the registration and defendant 1 himself took back the original bond from the sub-registry office and failed to make it over to the plaintiff. Seeing that they would not give effect to the rehun, defendant sold up the rehun property on his decree on a previous simple mortgage and bought it in.

(3.) The date of cause of action is given as 13 August 1929, the date of contract and acknowledgment. On behalf of the petitioner it is urged that as the plaintiff did not rely upon the rehun he is thrown back upon the original consideration which was the shikmi rent and so should have brought a rent suit. Here there is a fallacy. Before or at least latest at the execution of the bond the relationship of landlord and tenant had already given place to the relationship of creditor and debtor in respect of the money and it was this money debt which the defendants or at least those who executed the bond promised on 13 August 1929 to pay. Art. 6 of the Act does not apply and a suit by the plaintiff merely to recover the mortgage debt personally from the mortgagor (without at all claiming any charge on the property) is, as has very frequently been, held, a small cause. The first point fails.