KUNDAN LAL Vs. NATHU

JUDGEMENT

(1.) This is a reference by the learned Judge, Small Cause Court of Jhansi, in the following circumstances : The plaintiff, Kundan Lal, sued the defendant, Nathu, for recovery of a sum of Rs. 137-12-0 on foot of a promissory-note dated 31 May 1929, executed for Rs. 82. The defendant put up two defences. One was that the real holder of the promissory-note was not Kundan Lal but his master, Ram Prasad, and that the defendant had been discharged from insolvency and that therefore the suit was not maintainable.

(2.) The learned Judge found that there was no evidence before him to prove that Kundan Lal was not the real holder of the promissory note but his toaster was. Then the learned Judge proceeded to consider the effect of Nathu having been declared an insolvent and subsequently discharged but finding himself unable to come to a clear decision he referred the matter to us. The question has been formulated as-follows: How does the fact of the defendant being a discharged insolvent affect the case?

(3.) On the last occasion when the case came before us, we sent for the record of the insolvency case so that we might be in full possession of the facts relating to it. It appears that Nathu made an application for being declared an insolvent on 31 May 1930 and in the list of creditors he mentioned one Ram Prasad and mentioned Rs. 82 as the amount of the debt payable to him. We find many acknowledgments on the record, that the notice issued to Ram Prasad was received by one Kundan Lal who signed himself as the mukhtaram of Ram Prasad. If it were of any importance in this case to decide the point, we might notice that the signature of Ram Prasad in pen of Kundan Lal seems to be similar to the signature of Kundan Lal himself in the petition of plaint in the Small Cause Court suit. However we have not to decide any question of fact but only the question of law. After notices, were issued to the creditors mentioned in the schedule attached to the petition and. without any publication of notice in the local official gazette or in any local newspaper Nathu was given a discharge.