- (1.) THE plaintiff-respondent-Ganpatlal has filed a suit for recovery of a sum of Rs. 3400/- against Mana son of Goma, Harji son of Kesa and Achla son of Nanda, all resident of Siola, Tehsil Sojat, district Pali, in the court of Munsiff, Sojat, on 20. 01. 1976. THE suit was based on a promissory note Ex. 1, executed by all the three persons in favour of the plaintiff. THE promissory note specifically stated that the liability to payment of loan was joint and several,as is apparent from the following terms in the promissory-note, which reads as under : *******
(2.) IN the written statement, filed on behalf of defendants, the allegations in the plaint were denied. It was pleaded that the promissory note and receipt in lieu of amount received by the defendants has not been executed by the defendants and it was also pleaded that the pro-note was without consideration. A plea was also taken that the plaintiff is carrying on business of money-lending but he does not hold a valid licence under the Rajasthan Money-Lender's Act and, therefore, the suit is not maintainable. The trial court decreed the plaintiffs suit against all the defendants on 5-7-1978 for Rs. 2500/- only and did reject the claim of interest. The trial court found that the plaintiff is money-lender but held that since the provisions of Amending Act of 1975 had not come into force at the relevant time, Secs. 22 and 23 could not be applied retrospectively to the pending cases. Harji and Achla only appealed before the District Court, Pali against the aforesaid judgment and decree. In the appeal, it was pleaded that one of the defendants Mana had died during the pendency of the suit and his Legal Representatives have not been brought on record, therefore, the suit abated as a whole and the suit ought to have been dismissed in toto. It was also argued that since the plaintiff was a money-lender, he was under an obligation to comply with the provisions of Sections 22 and 23 of the Rajasthan Money Lenders Act and for that reason also, the suit ought to have been dismissed in toto, because Secs. 22 and 23 were applicable even to the pending suits when the Amendment Act of 1975 was made applicable. The appeal of the present appellant-defendants was partially accepted, while it was held that Mana died during the pendency of the suit, the suit against Mana only had abated. The First Appellate Court held the death of Mana did not result in abatement of whole suit and decree could have been passed only against the remaining defendants. The First Appellate Court also held that the trial Court erred in granting decree for expenses in favour of the plaintiff, even in respect of sum for which the suit was dismissed. However, on appreciation of evidence, and relying on the principle enunciated in (1) Gauri Shankar V. Maghram (1), the first appellate court held that the plaintiff cannot be said to be 'carrying on business of money lending' ; and, the plaintiff cannot be said to be. money-lenders within the meaning of Act. Therefore, the question of applicability of Secs. 22 and 23 of the Rajasthan money-lenders Act to the pending suits become wholly irrelevant and does not affect the plaintiffs claim. On the basis of these findings, the appeal was partly allowed and the decree passed by the trial court against Mana son of Goma was set aside. Decree about costs was modified as mentioned above. In other respects, the decree against the remaining defendants (present appellants) was maintained. In these circumstances, the appellants have approached this Court in the above Second Appeal. This court while admitting the appeal on 14. 12. 1979, framed the following questions as substantial questions of law, arising in the appeal : " 1. Whether in the death of Mana, the suit can continue against the other defendants-appellants, even though the suit was filed jointly against all the defendants? 2. Whether the suit is not maintainable in absence of licence of Money Lender Act?"
(3.) SO far as the first question is concerned, it is contended by the learned counsel for the appellants that the plaintiff has exercised his option to enforce the liability under the promissory note jointly by filing the joint suit and the trial court has passed a joint decree. The decree was indivisible and inseparable. The first appellate court ought to have dismissed the suit in toto. He relied on principles enunciated in decisions delivered in State of Punjab vs. Nathuram (2), Union of India vs. Shree Ram Bohra and others (3) and in State of Punjab vs. Kabul Singh and others Air 1962 SC 89 (supra), was a case in which certain land belonging to two brothers jointly was acquired for military purposes and, on their refusal to the compensation offered by the Collector, a joint award was passed by the arbitrator granting higher compensation to them jointly. The appeal against the said joint award was filed by the State of Punjab. It was during the pendency of appeal that one of the joint decree-holders died and question arose that on failure on the part of appellant to bring on record the legal representatives of the one of the joint decree-holder-respondent, resulted in abatement of appeal in toto or, it abated only against the deceased-respondent. It was in the aforesaid circumstances that the award of the compensation passed jointly in favour of two respondents was considered to be indivisible and inseparable that the court held that subject matter for which the compensation had been awarded was one and the same and the assessment of compensation so far as deceased respondent was concerned, had become final and there could not be different assessment of compensation for the same parcel of land. Hon'ble Supreme Court sounded a note of caution against applying this principle in abstract by observing as unde :- " When 0. 23, R. 4, C. P. C. does not provide for the abatement of the appeals against the co-respondents of the deceased- respondent, there can be no question of abatement of the appeal against them. The only question is whether the appeal can proceed against them. The provisions of 0. 1. , R. 9, CPC also show that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased-respondent, it has to proceed with the appeal and decide it. It is not only possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it. " The question whether a court can deal with such matters or not, will depend upon the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. . . . " This observation clearly indicate that on death of a party, question of abatement arises only qua the deceased party, and the question whether the appeal or suit can be proceeded against the remaining defendant-respondents, depends upon the facts of each case and in each case, it is to be decided according to its own merit. ;