MATA DIN KANDU Vs. RAM LAKHAN AHIR

JUDGEMENT

(1.) This is an application in revision from an order of a Small Cause Court Judge. It appears that the plaintiff before the Small Cause Court obtained a decree for Rs. 533-13-0 ex parte against the defendant on 12 November 1927. On 12 April 1928, the defendant obtained knowledge of ahe decree. On 22 April, 1928, he applied to set aside the decree, and in recordance with the rules filed a security bond with two sureties. On 27 April 1928, Balgovind applied to withdraw his name as surety. On 30 April 1928, the defendant paid into Court a sum of Rs. 335 which be thought was a sufficient sum to represent the suretyship of Balgovind. On 21 July 1928, the decree-holder objected to the security bond on the ground that the other surety Gopi Tewari being a Hindu and having two sons, his suretyship was worth nothing. It is to be observed that the security given was a hypothecation bond by Gopi Tewari in respect of joint and ancestral property. The Small Cause Court Judge decided this matter very briefly, and he says: The decree-holder says that his security is not enough, that Gopinath has sons, and as other security has not been filed, the application is dismissed.

(2.) It is apparent from this order that the security was rejected on the ground that Gopinath, a Hindu father, had two sons and that the property mortgaged was ancestral and joint. The Small Cause Court Judge considered that it was not possible for a Hindu father to pledge his estate for the purpose of being a surety. The appellant raises the question in his first ground of appeal that this statement of law is incorrect.

(3.) A preliminary question was raised on behalf of the respondent as to whether under Section 25, Small Cause Courts Act, this Court sitting in revision was entitled to interfere in this case on the ground that a proposition of law was incorrect. Reference was made by the learned Counsel for the respondent to Muhammad Nizamuddin Khan V/s. Hira Lal [1890] A.W.N. 121 in which Mahmud, J. had laid down at p. 122 that he was of opinion that the action of a Court of Small Causes was not questionable in revision unless it had caused at least such substantial injustice affecting the merits of the case or the jurisdiction of the Court as Section 578, Civil P.C., (now Section 115) contemplated. That decision was followed in Mohammad Baqar V/s. Bahal Singh [1891] 13 All. 277 in which it was laid down that Section 25, Provincial Small Cause Courts Act, was not intended to give in effect a right of appeal in all Small Cause Court cases and the revisional powers given by that section are only exerciseable where it appears that some substantial injustice to a party to a litigation has directly resulted from a material misapplication or misapprehension of law, or from a material error in procedure. Following these rulings we find that in the present case there was a very substantial injustice to the appellant, if we hold that the proposition of law on which the lower appellate Court acted was wrong, for the appellant has been deprived of any opportunity of having his case heard on restoration. For these reasons we hold that this is a case in which we should consider whether the proposition of law is correct or incorrect. For the appellant reliance was placed on Maharaja of Benares V/s. Ram Kumar Misir [1904] 26 All. 611. In this case it was held that the sons in a joint Hindu family are liable for the due fulfilment of a hypothecation bond entered into by their father as surety. No authority to the contrary has been shown to us but the learned Counsel for the respondent based his argument on this point of law on the Privy Council case reported at 104 (of 46 All.) Brij Narain V/s. Mangal Prasad A.I.R. 1924 P.C. 50. That was a case in which the question before their Lordships was whether two prior mortgages constituted a sufficient antecedent debt for a subsequent mortgage executed by a father of a joint Hindu family. Their Lordships held in the affirmative and at p. 104 laid down as the result of the authorities examined in that case five propositions. It must be admitted that the present case of a hypothecation bond as surety does not come under any of the propositions laid down by their Lordships indicating actions which may be taken legally by the father of a joint Hindu family. For the respondent it was argued that proposition 3 would apply to the present class of security. This proposition is as follows: It he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.