State Bank of India vs Sk. Samtulla

B.K. Behera, J.—The State Bank of India is in appeal against the impugned judgment and decree for money passed in its favour only as against the respondent holding that the suit had abated as against the defendant No. 2, the brother of the respondent jointly living with him at the time of entering into the transactions and executing two promissory notes (Exts. 1 and 2) and the two mortgage bonds of hypothecation (Exts. 3 and 4). The claims of the appellant based on Exts. 1 to 4 and supported by the only witness examined for it had not been disputed by the respondent who had examined himself as a witness. There was, in fact no contest with regard to the claims of the appellant. The only question raised was one of abatement of the entire suit as the defendant No. 2 had died during the pendency of the suit on 25.3.1974 leaving her widow Jaitoon Bibi without any issue. The learned Subordinate Judge has held that as both the defendants were jointly and severally liable and it was open to the appellant to recover the dues from any one of them, the entire suit did not abate because of the death of defendant No. 2 without his legal representative being brought on the record. Accordingly the suit was decreed against the defendant No. 1 only and it was held that the suit had abated as against the defendant No. 2.

Mr. Sinha has contended that the finding recorded by the learned Subordinate Judge that the suit has abated against the respondent No. 2 is not correct. There is no force in this contention. The fact remains that during the pendency of the suit, the defendant No. 2 died on 25. 3. 1974 leaving his widow and no step had been taken by the appellant for substitution of the legal representative of the deceased defendant No. 2. The suit had accordingly abated as against that defendant, as rightly held by the learned Subordinate Judge. The suit has been decreed against the respondent from whom the appellant can recover all its dues.

The appeal fails and is dismissed without any order as to the costs of this appeal.

P.C. Misra, J.

I agree.