BALIA, J.—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 :

^^--------lks ;g :i;s Jheku ds ryc djus ij ;k Jheku ftldks gqDe djs mlds ryc djus ij e; C;kt izfr lSdM+k :- 1½ v[kjs ,d :i;k lSadM+k egkokj ls is<+h iwxrk x.kiryky th vnk dj nwaxkA

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-Lenders Act and, therefore, the suit is not maintainable.

3. 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.

4. 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.

5. 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.

6. 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-appella

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