JUDGMENT :- Aggrieved by the judgment and decree dated 8-8-1997 by IXth Additional District Judge, Gwalior, dismissing its suit for recovery of Rs. 25,234.92 paise from the respondent this appeal has been preferred by the appellant-creditor.

2. This appeal is heard ex-parte as the respondent after service of notice of final hearing of this appeal initially appointed a lawyer to represent her but later on chose to remain absent and failed to appear in spite of SPC.

3. Facts giving rise to this appeal in brief are that one Shyam Behal had taken a loan of Rs. 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 Rs. 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, therefore, a suit was filed by the appellant on 25-8-1990 for recovery of Rs. 25,234.92 paise from her as the amount due on date. This suit was contested by the respondent. Besides other grounds she contested it also on the ground that she has no assets left by her son Shyam Behal to her and, therefore, was not liable for the said debt of Shyam Behal.

4. The learned trial Court after taking evidence of both the parties as adduced by them and after hearing them pronounced the impugned judgment on 8-8-1997 holding that the said amount was due from Shyam Behal but the respondent was not liable for its payment because the deceased Shyam Behal had not left any moveable or immovable property to the respondent. Therefore, the learned trial Court dismissed the suit of appellant-Bank.

5. The main grievance of the appellant against the impugned judgment and decree is that in view of Section 52 of the Code of Civil Procedure the legal representative of the debtor could have only raised the objection regarding the deceased having left no property in her hand in the execution proceedings and the learned trial Court should not have considered the same in the suit. According to him the learned trial Court ought to have decreed the suit after finding that the said amount was due from the said Shyam Behal and the respondent was his legal representative.

6. Therefore, the only question that arises for determination is whether the plea that the defendant was not in possession of the assets of the deceased was available to the defendant in the suit or not? On a similar question in the case of Sheonarayan Harlal v. Kanhaiyalal Devidin reported in, AIR 1948 Nagpur 168 following observations were made by Justice Bose, J. as be 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 this Province."

But then it was further observed by him:

"..............I think the plaintiff ought to have been told that he would be required to establish this in the suit and that it would not be enough to leave the matter to the execution stage. I think this was all the more necessary in a case where the defendant did not appear."

7. In the present case a plea was taken by the respondent that she was not liable to pay the said debt because the deceased had left no assets to her. The appellant-Bank had full knowledge of this plea and even evidence was adduced in the trial Court to that extent