1. This is an application under Section 25 of the Provincial Small Cause Courts Act against a decree in favour of plaintiff-respondent against the applicants who were defendants 1 and 4, in a suit for recovery of Rs. 178 and interest. The contentions on behalf of the applicant are, first, that the suit did not fall within the Act: and, secondly, that defendant 2 having applied for insolvency no Court except that of the District Judge had any jurisdiction.
2. In my judgment neither of these points is tenable. As regards the first point, the suit was originally brought under the ordinary procedure.
3. The Munsif himself converted it into a Small Cause Court suit. The joint family consisting of the defendants 1 to 5 owed the plaintiff Rs. 156 for rent of land which they held shikmi under him. Being unable to pay and being anxious to get more money, they borrowed Rs. 22 from their creditor and for the whole debt of Rs. 178 they executed on 13th August 1929, a rehun bond for the whole sum which included the usual personal covenant to pay. The suit was brought on 2nd August 1932, on the personal covenant only. In point of fact only three of the members of the joint family executed the bond, namely, defendants 1, 2 and 4. Defendants 3 and 5 neither joined in the execution nor admitted the registration and defendant 1 himself took back the original bond from the sub-registry office and failed to make it over to the plaintiff. Seeing that they would not give effect to the rehan, defendant sold up the rehan property on his decree on a previous simple mortgage and bought it in. The date of cause of action is given as 13th August 1929, the date of contract and acknowledgment. On behalf of the petitioner it is urged that as the plaintiff did not rely upon the rehun he is thrown back upon the original consideration which was the shikmi rent and so should have brought a rent suit. Here there is a fallacy. Before or at least latest at the execution of the bond the relationship of landlord and tenant had already given place to, the relationship of creditor and debtor, in respect of the money and it was this money debt which the defendants or at least those who executed the bond promised on 13th August 1929, to pay. Article 6 of the Act does not apply and a suit by the plaintiff merely to recover the mortgage debt personally from the mortgagor (without at all claiming any charge on the property) is, as has very frequently been held, a small cause. The first point fails.
4. When defendant 2 applied in insolvency, he did so in his personal capacity and not as karta of the joint family. It is true that in his application he mentioned the debt, but the effect of so doing was limited to himself. Actually no decree of any kind has been passed against defendant 2 the decree impugned is limited to his co-defendants 1 and 4 who were jointly and severally liable with the insolvent. It is of no significance that in the insolvency proceedings the plaintiff under a mistake of fact filed an application that his was a secured debt. In any event, it would not follow that if his security against the insolvent failed, he was not entitled to sue the co-promisors. Under Section 43 of the Contract Act, he is entitled to sue all or any of the joint promisors. Defendants 1 and 4 are entitled to take any steps which they may be advised, against the property of the joint promisors including defendant 2. The second point also fails. The application is without merits and the rule is discharged with costs.
R.K
5. Rule discharged.
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