MANNI GIR Vs. AMAR JATI CHELA

JUDGEMENT

(1.) This is an application in revision against a decree passed by a Court of Small Causes in a suit brought by the plaintiff for the recovery of a sum of Rs. 306-8-0 on the basis of a promissory note dated 16 August 1931, executed by one Sheo Narain Jati. Sheo Narain died before the institution of the suit and the plaintiff impleaded one Jadu Nandan Jati as the sole defendant in the suit. It was alleged in the plaint that the loan was taken by Sheo Narain in the capacity of the mahant of a particular math, with a view to defray the expenses of the math, and the plaintiff, accordingly, prayed for a decree declaring his right to realize the amount due to him from the math property. The learned Small Cause Court Judge however held that the allegation that the debt was taken for the purposes of the math was not proved, and, as such, the plaintiff was not entitled to realize the amount due to him from the math property. This decision of the learned Judge is not assailed before me.

(2.) Jadu Nandan Jati contested the suit inter alia on the ground that two persons named Amar Jati and Itwar Jati were necessary parties to the suit. The two last named persons were then added as defendants, but this was done after the expiry of the period of limitation for the recovery of the amount due on the basis of the promissory note. Amar Jati and Itwar Jati also contested the suit and the learned Judge dismissed the claim as against them on the ground that they were impleaded as defendants after the expiry of the period of limitation. The claim against Jadu Nandan Jati was decreed; but the decree was confined in its operation to the assets, if any, of Sheo Narain in the hands of Jadu Nandan. The plaintiff being dissatisfied with the decree of the learned Small Cause Court Judge has come up in revision to this Court and it is contended on his behalf that as Jadu Nandan was in possession of some of the assets of Sheo Narain the Court below should have passed a decree against all the three defendants, notwithstanding the fact that two of those were impleaded in the suit after the expiry of the period of limitation. The argument is that as the decree passed in the plaintiff's favour for recovery of the debt due from Sheo Narain could only be realised from the assets of Sheo Narain, and as Jadu Nandan was in possession of some of those assets, he must be deemed to have effectively represented the entire assets left by Sheo Narain, and accordingly the plaintiff was entitled to a decree entitling him to realise the decretal amount from the assets of Sheo Narain, irrespective of the fact whether those assets were or were not in possession of Jadu Nandan.

(3.) In other words it is argued that the suit was in substance a suit for recovery of the money claimed from the assets of Sheo Narain and was not against any de- fondant in his personal capacity, and as one of the persons in possession of those assets was sued within the period of limitation, an effective decree executable against the entire assets of Sheo Narain could be and ought to have been passed notwithstanding the fact that some of the defendants were brought upon the record after the expiry of the period of limitation. In support of these contentions reliance has been placed on the decision) in Muttijan V/s. Ahmed Ally (1882) 8 Cal 370, Khurshetbibi V/s. Keso Vina (1888) 12 Bom 101, Virchand Vajikaranshet v. kondu 1915 39 Bom 729 and Davalava V/s. Bhirnaji Dhondo (1906) 20 Bom 338 . In my judgment there is no force in the contentions advanced on behalf of the plaintiff applicant. The decree prayed for by the plaintiff was a simple money decree and the plaintiff's claim could be decreed only against those defendants who were sued before the expiry of the period of limitation. As Amar Jati and Itwar Jati were impleaded as defendants after the period to bring a suit on the basis of a promissory note had expired no decree could be passed against them. Jadu Nandan was sued as a legal representative of Sheo Narain and not in a representative capacity. The mere fact that Jadu Nandan, was impleaded as defendant within time could not therefore warrant the passing of a decree against persons who were not made defendants till the period of limitation for the suit had expired. The plaintiff no doubt was entitled to a simple-money decree against the legal representatives of Sheo Narain and to realise that decree from his assets.