Mt. Nanubati vs Bhaio Chaudhary

Kulwant Sahay, J.—The plaintiff opposite party instituted a suit against the petitioner on the basis of a hand-note executed by one Mt. Thakni, who was the mother-in-law of the petitioner. Mt. Thakni died without satisfying her debt. The plaintiff thereupon instituted a suit against one Pearey Pasban on the allegation that he was the heir of Mt. Thakni The suit was decreed but subsequently there was some litigations in the Lands Registration Department between Pearey Pasban and the petitioner each claiming to be in possession of the properties of Mt. Thakni as her heir. In those proceedings the present petitioner was registered in respect of the properties of Mt. Thakni as her heir. The plaintiff thereupon instituted the present suit on the basis of the same hand-note against the petitioner.

The defence was that the plaintiff, having already obtained a decree on the basis of the hand-note against Pearey Pasban, could not maintain a fresh suit upon the same hand-note against the defendant-petitioner. Secondly, it was contended that the hand-note was executed by Mt. Thakni and that the loan had not been taken at all by her.

The learned Judge of the Court of Small Causes has held that the suit was maintainable and that the hand-note was executed by Mt. Thakni on receipt of the money and he has accordingly made a decree against the present petitioner.

It is contended on behalf of the petitioner that the present suit was not maintainable. It is stated that the petitioner is in possession of the properties not as the heir of Mt. Thakni, but as the heir of her Husband. In the plaint the plaintiff distinctly stated that the petitioner was claiming as the heir of Mt. Thakni and she was in possession of the properties left by Mt. Thakni. In her written statement, the present petitioner admitted that she was the heir and stated that Peary Pasban was not the heir, and farther that she was in ''possession of the properties of Mt. Thakni and was registered in the Land Registration Department in respect thereof.

It is, therefore, admitted by the defendant-petitioner that she is the heir of Mt. Thakni and that Pearey Pasban against whom the plaintiff had ''previously obtained his decree is not the heir. The plaintiff says that his decree against Pearey Pasban has become infructuous and that it is incapable of execution as against Pearey Pasban, because Pearey Pasban was liable only to the extent of the assets that he had inherited from Thakni; and according to the allegation of the present petitioner herself, Pearey Pasban is not the heir of Mt. Thakni and is not in possession, of the assets left by Mt. Thakni, and she admits that she is in possession of the assets left by Thakni.

Under the circumstances the plaintiff could clearly maintain the suit, against the present petitioner. Section 12, Civil P.C. bars a further suit in respect of the same cause of action only where the plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action. In the present case there is no rule which prevents the plaintiffs from instituting a fresh suit on the same cause of action.

It being the common case that the person against whom the previous decree was obtained is not the heir of Mt. Thakni, the previous decree could not be executed against that person, and, therefore, the previous suit and the decree-obtained has become infructuous. Under the circumstances, the learned Judge in the Court below was right in finding that the present suit is maintainable.

The question as regards the genuineness of the hand-note and the passing of the consideration has been found in favour of the plaintiff, and there is no reason to interfere with that finding.

This application is dismissed with costs: hearing-fee one gold mohur.