SEWAKRAM CHANDRIDUTT Vs. NAKCHHED MADHORAM

JUDGEMENT

(1.) THIS is a Letters Patent appeal against the judgment and decree of Puranik, J. in second Appeal No. 512 of 1940. Since an important question of law was involved which required the consideration whether Nanhoo v. Zillimul lays down correct law, the appeal was referred by the Honourable the Chief Justice to this Full Bench.

(2.) THIS appeal arises out of a suit instituted by the plaintiffs Nakchhed and Bisahuram (res-pondents here) for recovery of Rs. 1,680 on bonds executed by Sewakram defendant (appellant here). Sewakram admitted the bonds "but pleaded that he had applied to the Debt Conciliation Board, Bilaspur, for the conciliation of his debts including the debts in suit. The Board sent notices to these creditors, one of whom, Nakchhed, appeared before the Board on the 5th January 1935 but no statement of debt was submitted by him as required by Section 8(1), Central Provinces Debt Conciliation Act, nor were the original bonds produced before the Board. Sewakram contended that the debts were discharged under Section 8(2) of the Act and under Section 9(8) the bonds were not admissible in evidence. It was also pleaded that inasmuch as Nakchhed was the karta of the family he effectively represented the other creditor and the whole of the debt was discharged. The plaintiffs denied that they had been served with any notices. They further pleaded that Nackchhed was present on 5th January 1938 not because he had received any notice but because he had some other work. The plaintiffs denied that Nakchhed was the karta of the family and he pleaded that there was a partition between the two brothers in 1936.

(3.) IT was, therefore, held that the plaintiffs had no right to bring the suit which was accordingly dismissed. The second appeal was heard by Puranik, J. who held, following Nanhoo v. Zillimul that inasmuch as no notice was sent under Section 7(1) of the Act, the proceedings before the Board must be treated as without jurisdiction and hence as null and void. On the question whether notices under Section 8(1) were served or not the learned Judge was inclined to remand the case for evidence but as he had already held that the proceedings before the Board were null and void, he did not see any need of ordering an inquiry as the result thereof would not have made any difference in the case. The case was thus sent back to the trial Court to be heard and decided on merits. The learned Judge, however, granted leave to the respondent and hence this appeal was filed.