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Sahu Hari Kirti Saran Vs. Mt. Bhagirathi Kunwar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1943All161
AppellantSahu Hari Kirti Saran
RespondentMt. Bhagirathi Kunwar and ors.
Excerpt:
- - it is no doubt well-settled that a hindu son acquires an interest in the joint family property from the time that he is in his mother's womb, but we are not aware of any authority which lays down that a son in the womb acquires an interest in an existing litigation. we are, therefore, clearly of the opinion that hari kirti saran was not entitled to file an application for the setting aside of the decree in raghunandan saran's suit and for the restoration of that suit to its original number. eventually he failed to prosecute the suit with the result that the suit was dismissed......the setting aside of a decree in a previous civil suit was filed by raghunandan saran, father of hari kirti saran appellant, in the court of the civil judge of moradabad in 1935. the decree sought to be set aside was passed in a suit that was decided by the trial court in the year 1917. dharam kirti saran, father of raghunandan saran, was a party to that suit. the suit filed by raghunandan saran in the year 1935 was based mainly on the allegation that the decree in the suit of 1917 was obtained by dharam kirti saran by the exercise of fraud. raghunandan saran's suit was pending in court from november 1935 to 21st january 1938. on the last mentioned date the counsel for raghunandan saran stated that he had no instructions to proceed with the suit and the court accordingly dismissed the.....
Judgment:

Iqbal Ahmad, C.J.

1. This appeal is directed against an order of the Civil Judge of Moradabad, rejecting an application for the setting aside of an alleged ex parte decree and for the restoration of a suit to its original number. The facts are a bit curious and are as follows: A suit for the setting aside of a decree in a previous civil suit was filed by Raghunandan Saran, father of Hari Kirti Saran appellant, in the Court of the Civil Judge of Moradabad in 1935. The decree sought to be set aside was passed in a suit that was decided by the trial Court in the year 1917. Dharam Kirti Saran, father of Raghunandan Saran, was a party to that suit. The suit filed by Raghunandan Saran in the year 1935 was based mainly on the allegation that the decree in the suit of 1917 was obtained by Dharam Kirti Saran by the exercise of fraud. Raghunandan Saran's suit was pending in Court from November 1935 to 21st January 1938. On the last mentioned date the counsel for Raghunandan Saran stated that he had no instructions to proceed with the suit and the Court accordingly dismissed the suit for default on 2lst of January 1938. On the day that the suit was dismissed, Hari Kirti Saran, the present appellant, was admittedly not born. Hari Kirti Saran was born on 26th February 1938, i.e., more than a month after the dismissal of Raghunandan Saran's suit. After the birth of Hari Kirti Saran, Mt. Tulsa, the great grandmother of Hari Kirti Saran, filed an application for the setting aside of the order dismissing the suit and for its restoration. That application was also dismissed for want of prosecution. An application was then filed on behalf of Hari Kirti Saran for the setting aside of the decree in Raghunandan Saran's suit and for the restoration of that suit to its original number. The application was dismissed by the Court below and Hari Kirti Saran has filed the present appeal.

2. It is clear from the facts stated above that Hari Kirti Saran was not in existence during the pendency of Raghunandan Saran's suit and was not born for some time after the dismissal of that suit. It would, therefore, prima facie appear that Hari Kirti Saran had no right to make an application for the setting aside of the decree in Raghunandan Saran's suit. It was, however, contended in the Court below--and the same argument has been advanced before us--that as Hari Kirti Saran was in the womb at the time when Raghunandan Saran's suit was dismissed, he had a right to apply for the restoration of the suit. We are unable to agree with this contention. It is no doubt well-settled that a Hindu son acquires an interest in the joint family property from the time that he is in his mother's womb, but we are not aware of any authority which lays down that a son in the womb acquires an interest in an existing litigation. It is needless to observe that a suit brought by a Hindu father for the avoidance of a decree obtained in a previous litigation is not property and much less property of the joint family. It, therefore, follows that the doctrine of Hindu law that recognizes the interest of a son in the womb in the joint family property cannot be extended to the case of a litigation started by one of the members of that family. We are, therefore, clearly of the opinion that Hari Kirti Saran was not entitled to file an application for the setting aside of the decree in Raghunandan Saran's suit and for the restoration of that suit to its original number.

3. Apart from this, there were no grounds for acceding to the application of Hari Kirti Saran. Raghunandan Saran brought the suit and prosecuted it upto a certain stage. Eventually he failed to prosecute the suit with the result that the suit was dismissed. It was suggested on behalf of the respondents in the Court below--and in our judgment there was force in the suggestion--that Raghunandan Saran ceased to prosecute his suit as the witnesses declined to give false evidence in support of his claim. It is, therefore, clear that the non prosecution of the suit by Raghunandan Saran was not due to any sufficient cause within the meaning of Order 9, Rule 9, Civil P.C., and as such the decree dismissing the suit could not be set aside. For the reasons given above, we dismiss this appeal with costs.


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