Misrilal and another vs Chhoga

Nigam, J.C.

Mishrilal gave an application under S. 4 (1) of the Bombay Agricultural Debtors'' Relief Act, 1947 as extended to the State of Ajmer, in the Court of the Debt Settlement Officer claiming a sum of Rs. 391/- as principal and Rs. 32/- as interest thereon. On 11-9-1952 the learned Debt Settlement Officer enquired into this claim. Then Mishrilal''s son Nathmal was present with the account books and produced the khatas which were marked Exs. C II/1 and C II/2. Nathmal was questioned by the learned Debt Settlement Officer and made no replies. The learned Debt Settlement Officer disallowed his claim. Against that order, Mishrilal and Nathmal came up in revision to this Court. Mishrilal is now dead and there is an application that the right to sue survives to his son Nathmal. That application is also fixed for hearing today.

Today I have heard the learned counsel for Nathmal. Choga debtor opposite party is not present despite service and the application has been heard ex parte against him.

Nathmal is stated to be the only son of Mishrilal deceased. I, therefore, allow the application for substitution of Nathmal''s name in place of Mishrilal deceased.

In the revision application the learned counsel has drawn my attention to the provisions of S. 21 of Bombay Act 28 of 1947. The learned counsel urges that it is incumbent on the Court to examine both the creditor and the debtor as witnesses. The learned Debt Settlement Officer did not examine the debtor. I am of opinion that the debtor should have been examined to see whether he admitted any part of the claim for in the absence of any evidence in favour of the creditor, a decree could have been given on the debtor''s admission. I, therefore, accept this revision application and direct the learned Debt Settlement Officer to restore the case to its original number and to proceed to examine the debtor unless he deems it unnecessary to do so for reasons to be recorded.

In this revision the applicant will bear his own costs.