2003 (11) TMI 622

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....on chose to remain absent and failed to appear in spite of S.P.C. Facts giving rise to this appeal in brief are that one Shyam Behal had taken a loan of ₹ 20,000/- from the appellant/Bank. He had agreed to pay interest on it at the rate of 12% per annum with quarterly rest. He also agreed to refund the amount in sixty instalments. Various documents were executed by that debtor Shyam Behal in favour of the appellant/Bank. The said Shyam Behal did make certain payments last of which was of ₹ 500/-, made on 10-12-1986. Thereafter, no payments were made by him till his death on 26-3-1988. The respondent being mother of the said Shyam Behal was his only heir as that Shyam Behal died unmarried. She also did not pay anything, therefor....

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....ailable to the defendant in the suit or not ? On a similar question in the case of Sheonarayan Harilal v. Kanhaiyalal Devidin, reported in AIR 1948 Nagpur 168, following observations were made by Justice Bose J., as he then was:-- "...... a difference of opinion emerges. Some Judges hold that in such a case the plaintiff is entitled to a decree the moment he proves that the defendant is an heir and that the correct stage at which to ascertain whether there are assets is in execution. Others hold that the existence of assets must be disclosed in the trial itself. I need not decide this matter in revision. All that is necessary to state in this case is that there is a difference of opinion on this point which has not been settled in th....

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....h either specifically or by implication, provides for the plea being taken in the course of the suit on the debt ? To hold this would be straining beyond all measures maxim of "unius inclusio alterius exclusio est." The fact that the plea of "plene administravit" can be taken in execution proceedings when events justifying such a plea may have occurred subsequent to the decree is no reason why it can not be taken in the suit as a reason for no decree being passed....... Indeed it would appear that a person sued for a debt as legal representative can resist the suit either on the plea that as the deceased left no assets, he can have no legal representative (since the expression has reference to some estate and does not ....