BHUDAT SINGH Vs. MANGAT RAI

JUDGEMENT

(1.) This is a defendant's appeal. Two points were raised in the memorandum of appeal, one being of limitation which has not been pressed, and the second being that the lower appellate Court erred in law in remanding the case and in directing that the succession certificate be taken in evidence by the lower Court.

(2.) The facts involved are very simple. The defendant executed a promissory-note in favour of one Kanhaiya Lal whose legal representatives transferred it to the plaintiff-respondent, Mangat Rai. Mangat Rai brought the suit out of which this appeal has arisen for recovery of the money due on the promissory note.

(3.) The defendant-appellant was absent as also the other defendants who were only formal parties, being representatives of Kanhaiya Lal. An ex parte decree was made against all the defendants. Defendant 1, Bhuddat Singh, filed an appeal before the District Judge and among the other points taken by him one was that the production of a succession certificate was necessary before a decree could be made in favour of Mangat Rai. It was argued that the appeal should have been allowed and the suit should have been dismissed outright by the learned District Judge, and complaint is made of the fact that the learned Judge allowed the succession certificate to be filed before him and ha remanded the suit to the lower Court to pass a fresh decree. Against this order of remand this appeal has been filed. The contention is that the decree passed by the first Court was a wrong decree and the subsequent production of the succession certificate could not validate the decree. Reliance has been placed on two cases by the learned Counsel for the appellant. One is a Full Bench decision of this Court Fateh Chand v. Muhammad Bakhsh (1894) 16 All. 259 and the other is Kasumari Das V/s. Mahkhu . As regards the first case, the relevant remarks will be found at p. 266. It will be noticed that the remarks there made were in the nature of an obiter dictum, although the obiter dictum made in a Full Bench case is to be treated by me with all respect.