PUKHRAJ JESHRAJ MARWADI Vs. JAMSETJI RUSTUM IRANI

JUDGEMENT

(1.) The main trouble in this case has been caused by irregularities in the procedure adopted in the Small Causes Court, Poona. The point is whether the plaintiff can be held liable as surety under a bond which he entered into in the Small Causes Court to pay a certain claim up to Rs. 1,000, if the principal debtor, one Khodadad, did not pay, there having been an ex- parte decree passed against Khodadad in favour of the Marwadi, who is the defendant- appellant in the present case. That ex-parte decree was set aside on the terms inter alia that the surety should give security in the way I have mentioned.

(2.) In 1919 the defendant Khodadad died. He left a widow, two minor sons and a daughter, who in fact were all in Persia. Khodadad was a Parsi. The Marwadi allowed over six months to expire and the suit to be abated before he made an application to set aside the abatement, and to bring the heirs on the record. But the person, whom he asked to be brought an the record, was not the true heir but one Tirandaj, the brother of the deceased. He did not specifically mention the relationship in his application to the Court, Exhibit 26, but [she matter came before the Judge on October 7; 1920, and according to certain official notes on page 5 of the additional paper book before us, he passed the following order: The order of abatement is set aside on the terms given in the order in Miscellaneous Application 81 of 1920.

(3.) Now, the Miscellaneous Application No. 81 of 1920 was the application Exhibit 26, which I have just referred to, and the actual order made was: The affidavit of petitioner shows that he could not trace the heirs of the deceased defendant within six months by his death. The order of abatement is set aside. Plaintiff to bear the costs of this application, and one-fourth of his costs in the suit are disallowed for failure to apply to join the heirs within six months.