JUDGMENT Ghulam Hasan, J. - This revision application, which is filed by the Defendant, is directed against a decree of the Small Cause Court. 2. On May 3, 1942 the Defendant Suraj Bali executed a promissory note in favour of one Ram Saran akas Newal Behari for Re. 300/-. A few days before the promissory note was to become time barred the suit out of which the revision arises was instituted by Sheo Behari, the brother of Newal Behari, the tatter's wife and three minor sons, on April 27, 1945. for the recovery of the amount due under the promissory note. In the plaint it was stated that Newal Behari had disappeared about three months before the suit and could not be traced and it was presumed that he had been killed. 3. The defence was a denial of the execution of the promissory note with the further plea that neither the promissory note nor the receipt were properly stamped and were, therefore inadmissible in evidence. It was also pleaded that the suit was not maintainable as Newal Behari was civilly alive. There were other defences but they are not material for the purposes of this revision. 4. The learned Judge of the Small Cause Court held that the promissory note was not duly stamped, as it did not have the letters "U.P.'' printed on the stamps. This observation also applied to the receipt but the learned Judge did not mention it in this connection. The lower court impounded the promissory note and dealt with the case as being based on the parole debt. He found that the debt was proved. He also found that Newal Behari was the youngest brother and not the kara of the family and the debt therefore could not be considered a joint family debt. In this view he held that Sheo Behari and the wife of Newal Behari had no locus stanai to maintain the suit. With regard to the other Plaintiffs he observed: It is true that because the fact of his death is not known and there can be no legal presumption of his death, the said Plaintiff also cannot actually be held to be the survivors as they allege. With regard to the other Plaintiffs he observed: It is true that because the fact of his death is not known and there can be no legal presumption of his death, the said Plaintiff also cannot actually be held to be the survivors as they allege. But if this first principle of equity is true, that for all right there must a remedy, I cannot in justice sanction the Defendant's attempt to defeat the debt that he took and as limitation has already expired by this time there can be no other suit if the present suit fails. I therefore adopt the measures suggested by Bucknill, J. In re Lala Govind Prasad v. Lala Jugdip, ILR 4 Pat. 376, i.e., court can and should appoint a person to look after the affairs of the person who has disappeared until his return or until his death can be properly presumed. 5. As a result of the view taken by him the suit was decreed in favour of the minor sons of Newal Behari only but on condition that they or their next friend should furnish sufficient security that the dues would be paid to Newal Behari if he should turn up. This course he considered to be warranted by Sewa Ram Vs. Hoti Lal and Another . 6. The Defendant challenges the order of the court below by revision. Counsel on both sides are agreed that the promissory note and the receipt are in admissible in evidence for the reasons mentioned by the court below. It has been however contended on behalf of the Defendant that the Plaintiffs could not fall back on the contract of loan as they did not put up this alternative case. Reliance is placed on Ram Nath Vs. Bhagwati Prasad and Another, AIR 1946 All 150 . That case is, however, distinguishable for there is nothing to show that in that case any alternative claim was put forward by the creditor that he would fall back upon an in dependent cause of action and prove the alleged loan by evidence other than the promissory note. The heading of the present plaint no doubt shows that it was based upon the promissory note and the receipt, but Paragraph I of the plaint clearly stated the taking of the loan, and the promissory note was mentioned merely as evidencing the transaction of loan. The heading of the present plaint no doubt shows that it was based upon the promissory note and the receipt, but Paragraph I of the plaint clearly stated the taking of the loan, and the promissory note was mentioned merely as evidencing the transaction of loan. Paragraph 4 of the plaint not only bases the cause of action on the promissory note but also on the date when the loan was taken. There can be no doubt therefore that the Plaintiffs did foresee the contingency and guarded against it by relying upon the transaction of loan independently of the promissory note. It is not possible to set aside the finding of fact for the evidence of the scribe was accepted as against the evidence of the Defendant. That finding must be accepted as binding in revision. 7. The only question is whether the Plaintiffs were entitled to maintain the suit admittedly there is no evidence on the record that Newal Behari is dead. No presumption can be drawn from the more fact of his disappearance for a few months. The suit was brought in 1945 and up to this date the Plaintiffs are unable to assert as a definite fact that he is dead. Newal Behari is civilly alive and being the holder of the promissory note is u/s 8 of the Negotiable Instruments Act a person entitled in his own name to the possession there of and to receive or recover the amount due thereon from the parties there to Payment of the amount due on that promissory note must, according to Section 78 of the Act, in order to discharge the maker or acceptor, be made to the holder of the instrument. 8. It was held in Reori (sic) Lal v. Manna Kunwar ILR 44 All. 290 that the provisions of the Negotiable Instruments Act do not admit of a suit being brought upon a promissory note by a benamidar Whose name does not appear upon the document. This suit was brought by the Plaintiff who alleged that the money was advanced by her to the debtor and the holder of the promissory note was merely her benamidar. This case was considered in the latter case in Sewa Ram Vs. This suit was brought by the Plaintiff who alleged that the money was advanced by her to the debtor and the holder of the promissory note was merely her benamidar. This case was considered in the latter case in Sewa Ram Vs. Hoti Lal and Another and though no express dissent was recorded, it was observed that it decided no more than that a Plaintiff suing to recover from a debtor is not entitled to a decree and the learned Judges considered that they were at liberty to hold that a decree directing that the decretal amount should be paid to or to the credit of the benamidar could be passed and that would not be recoverable by the real creditor, the Plaintiff, except on obtaining a discharge from the holder of the promissory note in respect of the debtor's liability thereunder. 9. A similar view was held in Harkishore Barua Vs. Gura Mia Chowdhry and Another, AIR 1931 Cal 387 The holder of the promissory note was alleged to be the benamidar for the Plaintiff, but it was held that the property in the note, including the right to receive or recover the amount due thereon, was vested in the holder and could not be transferred to the Plaintiff except by the process prescribed by law. The contrary view taken in Brojo Lal Saha Banikya Vs. Budh Nath-Pyari Lal Das, AIR 1928 Cal 148 was not followed as the opinion expressed therein was regarded as purely obiter. 10. In Krishnaji Shivaji Pawar Vs. Hanmaraddi Mallaraddi Maidur, AIR 1934 Bom 385 it was held that where a person brings a suit on a promissaory note in favour of his father who is alive and who has not renounced the world, the sou is not entitled to maintain the suit as he is not holder of the note. The decision in Harkishore Barua's case was followed in this case. 11. Govind Prasad's case, which was relied upon by the lower court, is inapplicable to the facts and circumstances of the present case. There was no question in that case whether the Plaintiffs, who were not the holders of the promissory note could institute a suit while the actual holder was civilly alive. 11. Govind Prasad's case, which was relied upon by the lower court, is inapplicable to the facts and circumstances of the present case. There was no question in that case whether the Plaintiffs, who were not the holders of the promissory note could institute a suit while the actual holder was civilly alive. In that case the decree-holder was civilly alive and the execution application was allowed to be filed by his pleader and was verified by his son, who was thoroughly acquainted with the facts of the case. That case frankly recognised that the son could not be legally substituted in the proceedings for the decree holder, for there was no proof that he was dead. There are certain observations at the end of the judgment and one of the learned Judges deciding that case suggested what should be done in the case of disappearance of a person about whose death nothing is known. He suggested two possible alternative courses. one by filing an affidavit which would enable the court to presume death, but if this could not be done then the Court should appoint some person to look after the affairs of the individual who had disappeared until his return or until his death could properly be presumed. The remarks are mere obiter and no authority is cited in support of this proposition. 12. The learned Judges in Sewa Ram's case passed their decision on the Calcutta case in Brojo Lal Saha's case, but, as I have already observed, this case was treated as expressing a mere obaer(sic) dicta by the Calcutta High Court in the later case referred to above. It mast also also be borne in mind that Sewa Ram's care was, like so many other cases a case by the real creditor against debtor and the holder of the instrument who was alleged to be benamidar for him. Such is, however, not the case here. The present case was filed by the sons of the holder of the instrument who is civilly alive. I do not think the principle of the decision in Sewa Ram's case could reasonably be extended to a case like the present. 13. I hold that the decree passed by the lower court cannot be sustained. Accordingly I allow the revision application, set aside the decree of the lower court and dismiss the suit but under the circumstances without costs.