KODANDARAMA AIYAR Vs. ARUNACHALA AIYAR

JUDGEMENT

(1.) The suit is on the pro-note executed by the 1st defendant while he was the managing member of the family consisting of himself and his brothers. The Subordinate Judge finds that the family became divided and that all the co-parceners except the 2nd defendant had sold their share of the family lands. It appears that the and defendant requested his elder brother to manage his lands. At the time when the original pro-note was about to become barred, the 1st defendant renewed the pro-note. The suit is now instituted against the 1st defendant and his brothers also. The lower Court gave a decree against the 1st defendant who executed the promissory note and dismissed it as against the other defendants, on the ground that the 1st defendant had no authority to renew the original promissory note after he ceased to be the manager of his family. I think he is right. Reliance was placed by the petitioner s Pleader in support of his contention on Bhasker Tatya Shet v. Vijalal Nathu 17 B. 512. All that that case decided was that the managing member who incurred a liability had a right to acknowledge that liability if he was at the time of acknowledgment the managing member. I, therefore, dismiss the petition with costs. In C.M.P. No. 1932 of 1915.

(2.) Civil Miscellaneous Petition No. 1932 of 1915 is a petition to set aside the ex parte decree passed against the 1st defendant in the above suit. The 1st defendant contends that he was not properly served with summons. His Pleader here admits that the 1st defendant executed the pro-note and that the money claimed under it is due but he says that if he had been present at the time the decree was passed, he would have asked the Court to pass a decree against the defendants Nos. 2 and 3 also, in order to lessen his own liability. But I have now decided that there is no cause of action against the defendants Nos. 2 and 3 on the suit note. In these circumstances even if there was no proper, service of summons and the decree was set aside on that ground, the 1st defendant could not get a fresh decree making the 2nd and 3rd defendants also liable.

(3.) I dismiss this petition also with costs. The memorandum of objections filed by the 1st respondent in Civil Revision Petition No. 10 of 1915 is also dismissed.