Skip to content


Mallappa Changbasappa Warad Vs. Asian Insurance Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 53 of 1955 with Civil Appln. No. 1428 of 1955
Judge
Reported inAIR1956Bom595
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 39, Rule 1
AppellantMallappa Changbasappa Warad
RespondentAsian Insurance Co. Ltd. and ors.
Appellant AdvocateS.C. Javali, Adv.
Respondent AdvocateB.G. Amin, Adv., ;i/b., B. Amin & Co., Attorneys, ;F.S. Nariman, Adv., ;i/b., Perreira Fazalbhoy & Co. Attorneys, ;V.V. Oak, ;Y.V. Chandrachud and ;K.J. Abhyankar, Advs.
Excerpt:
.....1908 - suit for partition - appeal against order passed by trial judge dismissing application for interim injunction under order 39 rule 1 and section 151 - plaintiff contended that debt contracted by his father was immoral and not binding on him - object of suit to gain time and postpone execution of decree obtained by creditors - provisions of order 39 rule 1 not allowed to be invoked - appeal liable to be dismissed. - - the family of warads has been a well-known trading family of sholapur, and in considering whether the debts contracted by defendant 1 were immoral or not it would be relevant to remember that they are debts contracted by the manager of a trading family. besides, it is also significant that, though the plaintiff attained majority in 1951, he was in no hurry to..........the plaintiff against the order passed by the learned trial judge dismissing his application for interim injunction made under order 39, rule 1, and section 151 of the code. the application for interim injunction was made by the plaintiff in his own suit where the plaintiff claimed partition by metes and bounds of his share in the ancestral properties of the family. the plaintiff is the son of chanbasappa warad and parvatibai warad. he has impleaded his parents as defendants 1 and 2 and his grandmother gavaravvabai as defendant 3 to the suit. though in form this is a suit for partition, in substance it is a suit in which the plaintiff seeks to challenge the validity and binding character of several debts contracted by his father. that is why the principal prayer in the suit is that the.....
Judgment:

1. This appeal has been preferred by the plaintiff against the order passed by the learned trial Judge dismissing his application for interim injunction made under Order 39, Rule 1, and Section 151 of the Code. The application for interim injunction was made by the plaintiff in his own suit where the plaintiff claimed partition by metes and bounds of his share in the ancestral properties of the family.

The plaintiff is the son of Chanbasappa Warad and Parvatibai Warad. He has impleaded his parents as defendants 1 and 2 and his grandmother Gavaravvabai as defendant 3 to the suit. Though in form this is a suit for partition, in substance it is a suit in which the plaintiff seeks to challenge the validity and binding character of several debts contracted by his father. That is why the principal prayer in the suit is that the debts contracted by his father, most of which have matured into decrees passed by civil Courts, do not bind his share.

By the application for interim injunction, the plaintiff alleged that properties in which he had a share were likely to be sold wrongfully In execution of the decrees obtained by the creditors of his father and so he wanted an interim injunction to issue against all the creditors restraining them from taking any further steps in execution of their respective decrees. Defendants 4 to 19 are these creditors. All of them have obtained decrees.

Some of the creditors have obtained decrees for the payment of money simpliciter, while some others have obtained decrees on mortgages executed by the plaintiff's father. The plaintiff himself was a party to the decrees passed in favour of the defendants 4 and 5. He was likewise a party to a decree passed in favour of defendant 6; it is a decree passed in a mortgage suit to which the plaintiff himself was made a party by his lather. A money decree obtained by defendant 6 does not show him as a defendant. Defendant 9 holds a mortgage-decree and the plaintiff is a party to this decree.

Defendants 10 to 19 have obtained decrees for the payment of money. The learned Judge took the view that from the circumstances that appeared at the hearing of this application for interim injunction the suit appealed to be a collusive suit between the rather and the son and that this was not a case in winch the provisions of Order 39, Rule 1, or of Section 151 could be legitimately invoked. Thai is why he dismissed the plaintiffs application for interim injunction.

2. As often happens in such suits, the suit itself makes slow progress and applications for interim injunctions and appeals preened against orders refusing interim injunctions hold up execution proceeding. Under Hindu Law the son is under a pious obligation to pay the debts of his fatner and the only way in which the son can attempt to escape that liability is to allege that the debts were immoral.

In some cases the doctrine of pious obligation may work hardship on the sons. But in a larger number of cases an attempt on the pare of the Hindu son to avoid submitting to the doctrine of pious obligation causes considerable hardship to the creditors of the lather and the large number 01 creditors who have been impleaded to this appeal have strenuously contended before me that the present suit falls in the latter category. I am not prepared to reject the contention of the creditors as not substantial in the present case.

The suit was filed on 3-7-1953. It has still not been disposed of, and, unfortunately, after the present appeal from order was admitted, the whole record of the suit has been brought to this Court with the result that any further progress in the suit became impossible. It is indeed to be regretted that the learned Advocates for the respondents did not take timely action in this matter and did not move to obtain proper orders for the return of the record to the trial Court.

If that had been done, 1 have no doubt that the suit would have been disposed of by now. The record of the whole suit was entirely unnecessary for the present appeal; but since it has come to this Court, virtually the suit has been stayed, and Mr. Javali is now driven to contend that the suit would be soon finished and no harm would be done if interim injunction is granted during the month or two that the suit will take hereafter. The creditors naturally feel aggrieved by the delay al-ready made in disposing of the suit and they are reluctant to consent to the interim injunction being granted subject to the expeditious disposal of the suit.

3. At this stage I would naturally (sic.) expressing any opinion on the merits of the plaintiffs contentions. But there are some facts which are not seriously in dispute. The family of Warads has been a well-known trading family of Sholapur, and in considering whether the debts contracted by defendant 1 were immoral or not it would be relevant to remember that they are debts contracted by the manager of a trading family.

On this fact the creditors are entitled to rely, so that the task awaiting the plaintiff in the present suit is not easy of accomplishment. He will have to show that the debts borrowed by the lather were of such a character that they would not bind him, and it is the debts incurred by the manager of a trading family, that are in dispute. Besides, it is also significant that, though the plaintiff attained majority in 1951, he was in no hurry to file the suit because the suit was filed on 6-7-1953.

When in a suit like the present the plaintiff has impleaded as many as 14 defendants and he asks for an injunction against these creditor-defendants, it would not be irrelevant to enquire why the plaintiff should have waited for a couple of years after he became a major. It is conduct like this that gives rise to the inference about the collusive character of the suit.

The learned Judge presumably thought that the object of the suit was to gain time and to postpone execution of the decrees obtained by the creditors against defendant 1. Delay made in filing a suit naturally creates this apprehension in the minds of the creditors and I am not, therefore, surprised that the learned trial Judge felt, as I have already indicated, that the suit was in the nature of a collusive proceeding.

4. Some of the creditors feel particularly aggrieved and the cases of creditors who are defendants 4 and 5 may be mentioned as an illustration. It appears that in respect of this claim defendant 1 himself had filed a suit No. 1087 of 1943on the original Side of this High Court. The present plaintiff, who was then a minor, had likewise filed another suit No. 1143 of 1943 in the Sholapur Court.

This latter suit was brought to the High Court and the two suits were tried together and a decree was passed, and yet the plaintiff now contends that the debt contracted by his father was immoral and not binding on him, and that the decree-holders should be restrained from proceeding with the execution of the decrees pending the decision of the present suit. I understand that an application was made by the plaintiff for stay of the proceedings instituted by these creditors, but this application was rejected by a learned Judge of this Court on the Original Side on 8-1-1953.

It is unfortunate that in the application for injunction made by the plaintiif on 21-7-1953 this material fact was not mentioned. Dr. Datar who is one of the creditors, contends that ho advanced a substantial amount to defendant 1 on the representation that defendant 1 would thereby be able to take concessional terms from his creditors.

The receipt of this amount is not in dispute and there does not appear to be any dispute about the concessional treatment received by defendant 1 and yet Dr. Datar is made a party to the present proceedings and the plaintiff does not want this creditor to enforce his claim. The same can be said about defendant 9 and defendant 13. At this stage it is desirable that any expression of opinion on the merits should not be made which is likely to prejudice the trial of the plaintiff's case.

But when the plaintiff in such a suit asks for an injunction restraining a large number of creditors who have obtained decrees against his father from executing their decrees, it is essential that the Court must be satisfied prima facie that the execution-sales sought to be stayed by the order of injunction can be regarded as sales wrongfully taking place. When the plaintiff seeks to Invoke the jurisdiction of the Court under Section 151, the position becomes still more difficult for the plaintiff.

The learned Judge has considered the case prima facie of each one of the creditors. He has set out the pleading of the plaintiff in respect of the debt due to each one of the creditors and the defence made by the creditors and he has held that he was not prepared to accept the plaintiff's version that execution proceedings taken out by these creditors could properly and legitimately attract the provisions of Order 39, Rule 1.

I am deliberately refraining from covering the same ground over again in my judgment because I do not wish to say anything which is likely to create difficulties in the way of the plaintiff. However, I must say that I feel no hesitation whatever in agreeing with the conclusion of the learned Judge that this is not a case in which the provisions of Order 39, Rule 1, can be allowed to be invoked. If that is my view about the application of Order 39, Rule 1, it is unnecessary to add that I would be wholly reluctant to exercise my jurisdiction under Section 151 in favour of the plaintiff.

5. In the result, the appeal fails and must be dismissed with costs. In Civil Appln. No. 1428 of 1955 the rule is discharged with costs.

6. I direct that the record which has been brought to this Court should be sent back to the Sholapur Court immediately. I also direct that the learned Judge should deal with this suit as expeditiously as he can.

7. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //