BIRKESWAR RAUT Vs. RAM LOCHAN PANDEY

JUDGEMENT

(1.) This rule is directed against the order of the Small Cause Court Judge of Motihari, giving judgment against the first defendant in the action which was based on a promissory note. The petitioner before this Court is the second defendant who is the brother of the first defendant. The second defendant however did not execute the hand-note which is the subject matter of the suit. The learned Judge has gone into questions involved in the case, including whether the hand-note was executed for joint family necessity.

(2.) It is a clearly established principle of law that where the action is based on a hand-note, members of the family other than the member who executed the hand-note cannot be liable in such an action. If an alternative case had been made out based on the original loan, then, on the fact established before the learned Judge, he would have been entitled in law to give judgment both against the first and the second defendants. But in the circumstances of this case he was clearly wrong in that the action was based on the hand-note alone. This in my judgment is clearly established by numerous authorities, also by a recent decision of this Court in Jibachi Mahton V/s. Shib Shankar chaudhary, 1933 Pat 637.

(3.) For these reasons it seems to me that the judgment against defendant 2, must be set aside with costs; hearing fee two gold mohors. Since delivering the judgment in this case, I have been referred to the case of Abdul Majid Khan v. Saraswati Bal, 1984 PG 4, which is said to be contrary to the decision of this Court to which I have already referred.