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Nan Bachchan and anr. Vs. Sita Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2491 of 1969
Judge
Reported inAIR1977All126
ActsLimitation Act, 1963 - Schedule - Articles 98 and 113; Code of Civil Procedure (CPC) - Order 21, Rules 63 and 92(3); Hindu Law
AppellantNan Bachchan and anr.
RespondentSita Ram and ors.
Appellant AdvocateK.B. Mathur and ;S.R. Misra, Advs.
Respondent AdvocateS.N. Verma, Adv.
DispositionAppeal partly allowed
Excerpt:
.....rectified by repealing and amending act, 1964 - hence before amendment article 98 did not apply to rule 63 - suit under rule 63 covered under article 113. (ii) duty of sons to repay father's debts - hindu law - debt incurred by father not for immoral purpose - sons in joint family under duty to repay debts - interest and properties of sons can be attached for purpose of repayment. - - and as the plaintiffs had failed to institute a suit within a period of one year from the final order passed under order xxi, rule 58, c. expired on 20th july, 1964 and as the suit was filed on 17th november, 1964 it was clearly barred by time. the property may be released from attachment where upon an investigation the court is satisfied that such property was not, when attached, in the possession of the..........decretal amount and other expenses etc., in court before the sale was actually confirmed. this opportunity was also not availed of by them. the plaintiffs in the circumstances cannot have the sale set aside so far as it relates to their right, title and interest in the house in question.24. in the result, the appeal is allowed in part. the decree passed by the court below is modified. the suit is decreed in part and the auction sale in favour of the defendant no 1 of house no. 22 (old)/24 (new)--nakas kona, allahabad in execution case no. 41 of 1963 --raja ram v. hanuman prasad -- of the court of munsif west, allahabad is set aside to the extent of sita ram's share in the house in suit namely half share therein. the suit with regard to the other half share in the house is dismissed. in.....
Judgment:

T.S. Misra, J.

1. This appeal by the defendants Nanbachcha and Rajaram arises out of a suit filed by the plaintiff-respondents to set aside an auction sale of the house in question in an execution case.

2. The relevant pedigree of the plaintiff-respondents as set out in the plaint is as follows:

RAM KISHAN

____________________|_____________________

| |

Hanuman Prasad Sita Ram (Issueless)

________________|___________________________________________________________

| | | |

Gopal Das Nand Lal Purshottam Dwarka Prasad

alias | |

Ram Gopal Pappu Kamal

_________|____________

| |

Ashok Arun Kumar

The plaintiffs claimed to be members of a joint Hindu family and the house in dispute was said to be the property of that joint Hindu family. The defendant No. 2 Raja Ram filed a suit for recovery of arrears of rent and ejectment against Hanuman Prasad and Gopal Das, the defendants 3 and 4 respectively, being suit No. 614 of 1960 in the court of Munsif West, Allahabad. A decree for a sum of Rs. 800 being arrears of rent was passed in that suit against defendants Nos. 3 and 4. Defendant No. 2 put that decree into execution and got attached and sold the said house. It was purchased by defendant No. 1 for a sum of Rs. 4100. The plaintiffs alleged that the said property was not liable to attachment and sale in execution of that decree inasmuch as it was a joint family property, and the decree passed in Suit No. 614 of 1960 being a personal decree against defendants 3 and 4 was not binding on the plaintiffs. They therefore, alleged that the sale of the said property in favour of defendant No. 1 was illegal and void, and was, therefore liable to be set aside.

3. The suit was resisted by the defendants 1 and 2 who filed separate written statements. The defendant No. 1 pleaded inter alia, that the plaintiffs had no right, title or interest in the disputed house and the suit was barred by time. It was also pleaded that the suit was barred by the provisions of Order XXI, Rules 63, 93 and 103 of the Code of Civil Procedure. He further pleaded that the business carried on in the tenanted house in question by defendants 3 and 4 was joint family business hence the decree passed against defendants 3 and 4 was binding on all their heirs and successors, and that the said decree was not a personal decree against defendants 3 and 4. It was also pleaded that the objections filed under Order XXI, Rule 58, Civil Procedure Code were dismissed twice and the said order was binding on the plaintiffs and defendants 3 and 4. The defendant No, 2 pleaded that the plaintiffs were not owners or co-sharers of the disputed house; that the suit was barred by time as also by Order XXI, Rules 63, 92 and 103 of the Code of Civil Procedure.

4. The trial court held that the plaintiffs were co-owners in possession of the house in dispute; that the suit was barred under Order XXI, Rules 63 and 92, C.P.C. and as the plaintiffs had failed to institute a suit within a period of one year from the final order passed under Order XXI, Rule 58, C.P.C. the sale had become absolute. On these findings the trial court dismissed the suit.

5. Against that decision the plaintiffs preferred an appeal before the District Judge, Allahabad. The appellate court below disagreeing with the trial court held that the suit was not barred by time. It, however, affirmed the finding of the trial court that the plaintiffs are the co-owners of the disputed house and are in possession over the same. On these findings the appellate court below allowed the appeal and modifying the decree passed by the trial court, set aside the auction sale of the house in dispute to the extent of the plaintiffs' 8/9th share therein.

6. Aggrieved, the defendants Nos. 1 and 2 have come up to this Court on second appeal.

7. For the appellants it was urged at the outset that the suit which has given rise to this appeal was barred by time. The trial court had accepted this contention but the appellate court below had repelled it.

8. The suit was filed under Rule 63 of Order XXI, C.P.C. It was urged on behalf of the appellants that Article 98 of the Limitation Act, 1963 governed the suit. Refuting this contention the learned counsel for the respondent submitted that Article 113 of the said Act would apply. On 15th April, 1963 Sita Ram Nand Lal, Purshottam and Dwarka Prasad filed an objection under Order XXI, Rule 58, C.P.C. in the execution case No. 41 of 1963 in original suit No. 614 of 1960 in the court of Munsif West, Allahabad. This objection was rejected for non-prosecution by an order dated 20th July, 1963. Again on 21st January, 1964 Sita Ram filed an objection under Order XXI, Rules 58 and 90, C.P.C. being Misc. Case No. 21 of 1964 in the said execution case. This objection was rejected in default by an order dated 21st March, 1964. The old Limitation Act prescribed a limitation of one year for a suit under Order XXI, Rule 63, C.P.C. This period was reduced to six months by U. P. Civil Laws Amendment Act, 1954. The Limitation Act of 1963 was brought into force on 1st January, 1964. The suit which has given rise to this appeal was filed on 17th November, 1964.

9. Article 98 of the Limitation Act, 1963 as it stood at the time of filing of the suit read as follows:--

Description of Suit

Period of Limitation

Time from which period beginsto run

98.

By a person against whom anorder under Rule 63 or Rule 103 of Order XXI of the Code of Civil Procedure,1908 or an order under Section 28 of the Presidency Small Cause Courts Act,1882 has been made, to establish the right which he claims to the propertycomprised in the order.

One year

The date of the

Final order

This article was amended by the Repealing and Amending Act, 1964 (LII of 1964) which was enforced on 29-12-1964. Words and figures 'under Rule 63 or rule 103' were substituted by the words and figures 'referred to in Rule 63 or Rule 103'. Thus after the amendment the relevant portion of first column of Article 98 read as follows:-

'By a person against whom an order referred to in Rule 63 or Rule 103 of Order XXI of the Code of Civil Procedure....... has been made, to establish the Article 113, which is a residuary Article read as follows:-

413.

Any suit for which no periodof limitation is provided elsewhere in this Schedule

Three years

When the right to sue accrues.

The contention on behalf of the appellants was that the final order under Order XXI, Rule 58, C.P.C. was passed on 20th July, 1963 hence in view of the provisions of Article 98 of the Limitation Act, 1963 the limitation for filing the suit under Order XXI, Rule 63, C.P.C. expired on 20th July, 1964 and as the suit was filed on 17th November, 1964 it was clearly barred by time.

10. The learned counsel for the respondent, however, urged that Article 98, as it stood at the time of the filing of the suit did not apply, inasmuch as it had then contemplated a suit by a person against whom an order under Rule 63 had been made, and since no order under Rule 63 had been made against the plaintiffs, the provisions of Article 98 were not applicable; and as no period of limitation was provided elsewhere in the Schedule to the Limitation Act, 1963 under Article 113. (sic)

11. Rule 58 of Order XXI, C.P.C. provides that where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. Sub-rule (2) of Rule 58 as amended by this Court provides that where the property to which the claim or objection applies has been advertised for sale, the Court may postpone it pending the investigation of the claim or objection or may in its discretion make an order postponing the delivery of the property after the sale pending such investigation. And in no case shall the sale become absolute until the claim or objection has been decided.

12. Under Rule 60 of Order XXI, C.P.C. the property may be released from attachment where upon an investigation the Court is satisfied that such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him. However, where the Court is satisfied that the property was, when attached, in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, the Court shall disallow the claim under Rule 61 of Order XXI, C.P.C. Rule 63 provides that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit, if any, the order shall be conclusive.

13. In the case in hand, Sita Ram, Nand Lal, Purshottam and Dwarika Prasad had preferred an objection under Order XXI, Rule 58, C.P.C. which was fore, institute a suit under Rule 63 of Order XXI, C.P.C. to establish their right which they claimed to the property in dispute. They have, in fact, filed the suit under this Rule on 17th November, 1964. The question which thus falls for determination is whether Article 98 or Article 113 of the Limitation Act would apply to this suit. The principles which are to be borne in mind in interpreting the articles of the Limitation Act are well known namely, (i) an interpretation which is penal should be avoided (ii) if possible, the interpretation which does not bar the suit should be preferred to the one which bars the suit (iii) if there is a specific article applicable to the facts of the case the residuary article should not be applied, and (iv) all the columns of the article should be construed (See Union of India v. Hem Chandra : AIR1970All228 . It is equally well settled that statutes of limitation like all others ought to receive such construction as the language in its plain meaning imports. Equitable considerations are out of place in construing the provisions of a statute of limitation and strict grammatical meaning of the words is the only safe guide. (See Boota Mal v. Union of India : [1963]1SCR70 . In the case of Limitation Act where the language is not clear, a construction in favour of the right to proceed rather than one barring such right should be adopted. It was pointed out in L. Bal Mukund v. Lajwanti : AIR1975SC1089 , that the Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A court ought to avoid an interpretation upon a statute of limitation bv implication or inference as may have a penalising effect unless it is driven to do so by the irresistible force of the language employed by the Legislature.

14. Article 98 of the Limitation Act, 1963 as it stood at the time of the institution of the suit provided that a person against whom an order under Rule 63 had been made may file a suit within one year from the date of the final order to establish the right which he claimed to the property comprised in the order. Rule 63 of Order XXI, C.P.C. as pointed out above, however, provides that a person against whom an order had been passed on an objection under Order XXI, Rule 58, C.P.C. may file a suit to establish the right which he claims to the property. But no order is in fact passed under Rule 63. The order referred to in Rule 63 is passed either under Rule 60 or 61. Obviously, from the language of Article 98 applied to a suit filed under Rule 63 of Order XXI, C.P.C. This defect in the language was noticed by the Parliament as well and in order to remove the inaccuracy in the description of orders contemplated by Article 98 its amendment was made by the Repealing and Amending Ac of 1964 by substituting the words 'referred to in Rule 63 or Rule 103' for the words 'under Rule 63 or Rule 103'' From the statements of objects and reasons pertaining to the Bill introduced for the amendment of the Limitation Act, 1963, it appears that the Bill was one of those periodical measures by which enactments, which had ceased to be in force or had become obsolete or the retention whereof as separate Acts was necessary were repealed, or by which formal defects detected in enactments were corrected. The notes explained the reasons for the repeal or amendment. So far as Limitation Act, 1963 was concerned it was stated in the Bill that an inaccuracy in the description of the orders contemplated by Article 98 and a typographical mistake in Article 136 were sought to be corrected.

15. In these circumstances the construction to Article 98, as it originally stood, should be such as preserved the remedy and not the one which barred or defeated it. The language of Article 98 was ambiguous and inaccurate. It could not, therefore, be said that Article 98 as it stood before its amendment, applied to a suit instituted under Rule 63 of Order XXI, C.P.C. It may, however, be added that after its amendment by the Repealing and Amending Act, 1963. Article 98 of the Limitation Act applies to a suit instituted under Rule 63 of Order XXI, C.P.C. Since the suit which has given rise to the present appeal was filed before Article 96 was amended, it was governed not by Article 98 but by the residuary Article 113 of the Limitation Act. That being so, the suit was filed well within time.

16. It was next contended on behalf of the appellants that the sale of the property in question having been confirmed by the Court, the suit was barred by Sub-rule (3) of Rule 92 of Order XXI, C.P.C. In this connection it was urged that the objection under Order XXI, Rule 58, C.P.C. filed on behalf Sita Ram was dismissed on 20th July, 1963, his objection under Order XXI, Rule 90, C.P.C. was also dismissed on 21st March 1964, and as no objection under Order XXI, Rule 58, C.P.C. or any suit under Order XXI, Rule 63, CP.C. was pending the provisions of Rule 58 (2), C.P.C. were not attracted and the plaintiffs' rights, if any, ceased on the confirmation of sale on 1st of August, 1964, hence the suit subsequently filed on 17th November, 1964 was not maintainable. This contention has no force. True it is, that the auction sale of the house in question was confirmed on 1st of August, 1964, the objections filed by Sita Ram under Order XXI, Rule 90, C.P.C. having already been rejected on 21st March, 1964. Sub-rule (2) of Rule 58 as amended by this Court clearly provides that in no case shall the sale become absolute till the claim or objection filed under Rule 58 of Order XXI. C.P.C. has been decided. Rule 63 provides that where a claim or an objection is preferred, the party against whom en order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any. an order passed against the party on the objections preferred under Rule 58 shall be conclusive. In the instant case. the order was passed against Sita Ram and others on their objections preferred under Rule 58. That order was subject to the result of the suit which had been filed under Rule 63 by the plaintiffs. In the mean time the sale was confirmed. The order of confirmation would, therefore, not affect the maintainability of the suit in view of the provisions of Sub-rule (2) of Rule 58 read with Rule 63 of Order XXI, Code of Civil Procedure. Sub-rule (3) of Rule 92 no doubt- provides that no suit to set aside an order made under this rule shall be brought by any person against whom such order is made. Rule 91 relates to an application by the purchaser to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. This rule is not relevant for the purposes of this case. Rule 89 deals with an application by the judgment-debtor or any person interested in the property to set aside the sale after deposit of the decretal amount and the penalty. The case in hand does not seek to set aside the sale on any such ground. Rule 90 relates to the case where there has been material irregularity or fraud in publication or conducting a sale. The plaintiffs do not seek to have the sale set aside on the ground of material irregularity or fraud in publishing or conducting the sale. Their case is that the house in dispute was not liable to sale and attachment as it was not the exclusive property of defendants 3 and 4, that the property is joint family property and the shares of the plaintiffs could not be auctioned and that the decree for arrears of rent does not bind the plaintiffs inasmuch as it was a personal decree against defendants 3 and 4. In his objection under Order XXI, Rule 90, C.P.C. Sita Ram had stated that he was owner in possession of half the share in question; that he was neither the judgment-debtor nor in any way liable for the decretal amount, that he had no knowledge of the attachment or the execution proceedings, that the house in dispute was his residential house and that he would suffer irreparable loss and hardship if the sale was confirmed, that the decree-holder had played fraud and had not apprised the Court of correct facts, and that the valuation of the house was shown too low and the price paid shall materially prejudice his right.

17. These allegations do not, in my view, bring his case within the purview of Sub-rule (3) of Rule 92 so as to disentitle him from maintaining his suit. The view which I have taken finds support from a Division Bench decision of this Court in Bhagwan Das Marwari v. Suraj Prasad Singh : AIR1925All146 . En these circumstances Order XXI, Rule 92 (3) of the Code of Civil Procedure has no application.

18. Sita Ram was not a judgment-debtor and was under no obligation to pay the amount of the decree in the execution of which the house in question was put to sale. Sita Ram had half share in the house in question. His share in that house was not liable to be sold in execution of a decree passed against Hanuman Prasad and Ram Gopal alias Gopal Das. He could, therefore maintain the suit for having the sale set aside so far as his interest in the house in dispute was concerned.

19. It was next urged that as the decree in the execution of which the house was sold had been passed against the Karta of the family and his son, it was binding on the other members namely, the plaintiffs as the ancestral business was carried on in the shop. This point was not allowed to be raised by the appellate court below and in my view on justifiable grounds.

20. Lastly it was urged that the sons of Hanuman Prasad were under pious obligation to pay off the debt of their father and the plaintiffs' interest in the property in dispute could be validly sold in execution of a decree passed against Hanuman Prasad. It is not in dispute that the decree passed in suit No, 614 of 1960 did not relate to a debt which could be said to be tainted with immorality. The decree was passed against Hanuman Prasad and Ram Gopal alias Gopal Das, the latter being the son of Hanuman Prasad. The plaintiffs Nand Lal, Purshottam and Dwarika Prasad are the sons of Hanuman Prasad. The plaintiffs Ashok, Arun Kumar, Pappu and Kamal are the grandsons of Hanuman Prasad. These plaintiffs were no doubt under pious obligation to pay the debt of Hanuman Prasad. Sita Ram, who was the brother of Hanuman Prasad was, however, under no pious obligation to pay the debt of Hanuman Prasad. It is well settled that by virtue of the doctrine of pious obligation the interests of the sons in the joint family property are answerable for the debts of their father in a ioint family. The assets belonging to the ioint family constituted by the father and the sons are liable ior the debts of the father, provided they were not incurred for any illegal or immoral purpose.

21. In Panna Lal v. Mst. Naraini : [1952]1SCR544 it was held that the pious liability of the son to pay the debt of his father exists whether the father is alive or dead, and that it is open to the father during his lifetime to effect a transfer of any joint family property including the interests of his sons in the same to pay off the antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate.

22. These principles were reiterated in Sidheshwar v. Bhubneshwar : [1954]1SCR177 wherein it was also held that it is special liability created on purely religious grounds and can be enforced only against the sons of the father and no other coparcener. The liability, therefore, has its basis entirely on the relationship between the father and the son. It is in no way dependent upon the constitution of the family either at the time when the debt was contracted, or when the obligation was sought to be enforced. It was further held therein that so far as the legal liability of the sons is concerned where the debts incurred by the father are not shown to be immoral or irreligious it must be held that under the Hindu Law mentioned above, there is a legal liability on the part of the sons to discharge these debts and the creditor can enforce this liability by attachment and sale of the sons' interest in the same manner as if it was a personal debt due by them. The fact that the father was not the Karta or manager of the joint family, or that the family did consist of other coparceners besides the father and sons, does not affect the liability of the sons in any way. A money decree passed against the father certainly creates a debt payable by him. If the debt was not tainted with immorality it was open to the creditor to realise the dues by attachment and sale of the son's coparcenery interest in the joint property. The creditor has an option in such cases. He can, if he likes, proceed against the father's interest alone but he can, if he so chooses, put up to sale the son's interest also and it is a question of fact to be determined with reference to the circumstances of each individual case whether the smaller or larger interest was actually sold in execution. Where it has been found as a fact that the executing Court intended to sell and did sell a share in the joint property which included the undivided interest of a son, all that the son can claim in such a case is that not being made party to the sale or execution proceedings he ought not to be barred from trying the nature of the debt or his liability to pay the same in any suit or proceeding started by him, or to which he might be made a party. He can raise the point either by way of objection in the execution proceeding itself or he can himself file a suit for a declaration that the debt was not binding on him. He can also raise it by way of defence when the auction purchaser seeks to have his right defined and demarcated in a partition suit.

23. In view of this legal position the sons of Hanuman Prasad were under pious obligation to discharge the debt of their father and the creditor could legally attach and put up to sale the right, title and interest of the sons in the joint family property, namely the house in dispute. One of his sons was also a joint debtor. His interest in the said property could, therefore, under all circumstances be attached and put to sale. The creditor had in fact sot the entire property attached and sold. I have already held above, that the interest of Sita Ram in the said property could not be sold or attached for the discharge of the debt in question. The right, title and interest of Hanuman Prasad and all this sons in the said property could, however, be legally attached and sold for the discharge of the debt in question, the debt having not been incurred for immoral or irreligious purpose The contention that the interest of the plaintiffs in the joint family property could not be attached and sold unless they were given an opportunity to pav the debt has no merits. The plaintiffs had filed their objection under Order XXI. Rule 58, Civil P. C. after the house had been attached. They could, if they were so minded, pay off the debt incurred by their father. They, however, did not choose to do so. They were aware that the creditor was proceeding to recover the debt by attachment and sale of the house in question. They could have avoided the sale of the property in question, by paying up the debt They could also have got the sale set aside bv making deposit of the decretal amount and other expenses etc., in Court before the sale was actually confirmed. This opportunity was also not availed of by them. The plaintiffs in the circumstances cannot have the sale set aside so far as it relates to their right, title and interest in the house in question.

24. In the result, the appeal is allowed in part. The decree passed by the Court below is modified. The suit is decreed in part and the auction sale in favour of the defendant No 1 of house No. 22 (old)/24 (new)--Nakas Kona, Allahabad in Execution Case No. 41 of 1963 --Raja Ram v. Hanuman Prasad -- of the Court of Munsif West, Allahabad is set aside to the extent of Sita Ram's share in the house in suit namely half share therein. The suit with regard to the other half share in the house is dismissed. In the circumstances, of the case the parties shall bear their own costs throughout.


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