The liability of the plaintiff to pay the remaining amount of the loan and the necessity for the lower court to ascertain the substitution of the deceased debtor's heirs and the issuance of notices before issuing distress warrant or attachment warrant against the plaintiff appellant.

S.N.Pathak, J.

1. This Miscellaneous Appeal is directed against the order passed by Sub Judge, 4th, Motihari, in Title Suit No. 130/95.

2. It transpired from the impugned order that a certificate case no. 26/91-92 was pending against one Jagarnath Singh for realisation of Rs. 50,000/-, the amount of loan taken from the Bihar State Land Development Bank. The plaintiff-appellant is the son of the said Jagarnath Singh and before this Court it was stated by him that neither he was noticed in the concerned certificate case nor he was a party to the same. Therefore, the alleged distress warrant and body warrant issued from the Certificate Officer were illegal. It was further alleged by the appellant that there was no loan taken by Jagarnath Singh and connected papers in this connection in the concerned Bank were forged etc. The court held that Jagarnath Singh, of course, had taken loan and certain part payments were made upto the year 1998, but when the loan remained still due certificate case was filed. So, the plaintiff was liable to pay the remaining amount of loan. However, it transpired from the impugned ordersheet as well as from the memo of appeal that Jagarnath Singh died in the year 1995. So, in such a circumstance, the lower court should have ascertained from the records of the certificate case whether the heirs of Jagarnath Singh were substituted and whether notices were sent to them and only in that case distress warrant or attachment warrant or body warrant will be issued against the plaintiff appellant. It has been stated in the impugned order that the plaintiff had also paid certain part of the loan in the year 1990, but this statement in the impugned order does not appear to be correct because if Jagarnath Singh had taken loan, the payments made by him or in his name whosoever might have paid the same, would be on his behalf and so in that view of the matter, after death of Jagarnath Singh the plaintiff should, of course, have been noticed before the Certificate Officer could proceed against him. The lower court has made a sweeping and general statement in the impugned order that the plaintiff was noticed. But it is not clear from the impugned order that the plaintiff was substituted in place of his father in the certificate case which was filed in the year 1992. Of course, son and daughters of a debtor are liable for debts of their father, but progenies are not liable for bad debts of their father. Besides the above, admittedly, the loanee was Jagarnath Singh and he must have furnished security into the Bank. So, the Bank could have proceeded to realise the loan money from the security, it was not necessary for the Bank or the Certificate Officer to issue body warrant against the plaintiff.

3. The circumstances of the case, therefore, make out a good case for setting aside the impugned order.

4. In the result, this Miscellaneous Appeal is, allowed and the impugned order is set aside. The lower court shall pass a fresh order after calling for the records of the concerned certificate case and after ascertaining whether the plaintiff-appellant was a party to that case and whether he was liable to pay the debts of his father under the relevant laws. After taking into consideration hall these legal aspects of the case and after hearing both the parties, the lower court shall be free to pass a fresh order on the injunction petition of the plaintiff-appellant.